Petition for Writ of Certiorari — CropLife America v. Baykeeper

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No. 09-

IN THE

Supreme Court of the United States

AMERICAN FARM BUREAU FEDERATION,

AMERICAN FOREST & PAPER ASSOCIATION, AND

NATIONAL COTTON COUNCIL,

Petitioners,

BAYKEEPER, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

KLLEN STEEN

Counsel of Record

CLIFTON 8S. ELGARTEN

JESSICA A. HALL

CROWELL & MORING LLP

1001 Pennsylvania Ave., NW

Washington, DC 20004-2595

(202) 624-2500

Counsel for Petitioners

. ‘ EEE

Or COUNSEL

JULIE ANNA POTTS WILLIAM R. MURRAY

AMERICAN FARM BUREAU AMERICAN FOREST & PAPER

FEDERATION ASSOCIATION

600 Maryland Ave., SW 1111 - 19th Street, NW

Suite 1000W Suite 800

Washington, DC 20024 Washington, DC 20036

WILLIAM A. GILLON

GILLON & ASSOCIATES, PLLC

1163 Halle Park Circle

Colherville, TN 38017

QUESTIONS PRESENTED

1. Did the Sixth Circuit err in holding that the

“plain language” of the Clean Water Act precludes

an EPA rule, consistent with 35 years of agency

practice, that the application of a useful pesticide for

its intended purpose and in accordance with relevant

requirements of EPA’s pesticide regulatory program

is not a “discharge of a pollutant”?

2. In reviewing an agency regulation under

Chevron, may a_ court reject the agency's

interpretation by declaring a “plain meaning” that

departs from the common understanding of the

controlling statutory provisions, without considering

statutory context, the simultaneous enactment of a

different statute more specifically addressing the

subject matter, or the agency’s contemporaneous

interpretation, all of which support the agency’s

interpretation?

(Q)

PARTIES TO THE PROCEEDING

Respondents are:

Environmental petitioners before the Sixth

Circuit: Baykeeper; Californians for Alternatives to

Toxics; Calfornia Sportfishing Protection Alliance;

Environment Maine; National Center for

Conservation Science and Policy; Oregon Wild;

Peconic Baykeeper, Inc.; Saint John’s Organic Farm;

Soundkeeper, Inc.; Toxics Action Center; and

Waterkeeper Alliance, Inc.;

Environmental Protection Agency, respondent

before the Sixth Circuit; and

Industry petitioners before the Sixth Circuit:

Agribusiness Association of lowa; Bayer

CropScience, LP; BASF Corporation; CropLife

America; Delta Council; Eldon C. Stutsman, Inc.;

FMC Corporation; Illinois Fertilizer & Chemical

Association; and Responsible Industry for a Sound

Environment; Southern Crop Production

Association; and Syngenta Crop Protection, Inc.

RULE 29.6 STATEMENT

American Farm Bureau has_ no _ parent

corporation and no publicly held corporation owns

10% or more of its stock.

American Forest & Paper Association has no

parent corporation and no publicly held corporation

owns 10% or more of its stock.

National Cotton Council of America has no

parent corporation and no publicly held corporation

owns 10% or more of its stock.

(11)

TABLE OF CONTENTS

Page

ee Re 8 oS yy”)

PARTIES TO THE PROCEEDING......... RR eT il

RULE 29.6 STATEMENT.................00.... Saad veieteneen ll

PRs RE GIG 0G EG vn vised so pcrevedcannsercessiyanencensesss lil

PRE has COE BUF E WPAN LEED wines esccesvssssssanvecnsonavecesies Vv

RF Ie MNO os cin cecnrcivcecornevesscsuece sessuscyrsveersssons 1

PE iis circches (odeisaks cies bucwsaanaaiinousireveatonedonns 1

STATUTORY PROVISIONS INVOLVED................. l

STATEMENT OF THE CASE................. BR An Ber te ee l

Fi. RREUCOTY BCR OPO aoe. oesccccccccsesencaccccnsseee, 2

B. Litigation Leading To The Rule ................. 6

C. The Rule And Its Rationale ........................ 8

BP. FR RIO BR Ga iaicsnssnrdsacncicscthussacisencs 10

EK. Epa’s Response To The Decision .............. 12

REASONS FOR GRANTING THE WRIT............... 13

I. THE BROAD REACH AND

HARMFUL IMPACT OF THE

SIXTH CIRCUIT’S DECISION

MAKE THIS A CASE OF

EXCEPTIONAL IMPORTANCE..............14

A. The Decision Overturns Three

Decades of EPA Practice and

Will Dramatically Expand the

Scope of the NPDES Program...........15

(iu)

IT.

TABLE OF CONTENTS

Continued

B. The Decision Threatens

Essential! Activities That

Protect Our Nation’s Public

Health and Food Supply..............

THE DECISION BELOW

TRAMPLES SETTLED

PRINCIPLES OF JUDICIAL

REVIEW AND CONFLICTS WITH

DECISIONS OF THIS COURT

AND OTHER CIRCUITG....................

A. The Sixth Circuit’s Reading of

“Chemical Wastes” and “From

a Point Source” Overrides the

Common Meaning of Those

ae lane ee

B. The Decision Contravenes This

Court’s Precedents by

Disregarding Statutory

Context and History That

Support the EPA Rule.................

C. The Sixth Circuit’s Reading of

“Biological Materials”

Disregards Statutory Context

and Conflicts With Decisions of

This Court and the Ninth

Fite LAE DIRE ERAN a ACA ope

(iv)

=a oo

Ee ae PETE, <0. c2 5s pte neha easdiondndeuualsnssaciserieiee

Page

ners 20

Bes 20

Sikes 25

TABLE OF CONTENTS

Continued

APPENDICES:

National Cotton Council of

America, et al. v. United States

Environmental Protection Agency,

Nos. 06-4630, 07-3182, 07-3185, 07-

3183, 07-3186, 07-8184, 07-3187

CORED Clie, PUTA. 7, DIED ccescccccerecsecvecsenvens

National Cotton Council of

America, et al. v. United States

Environmental Protection Agency,

Nos. 06-4630, 07-3182, 07-3185, 07-

3183, 07-3186, 07-8184, 07-3187

(6th Cir. Aug. 3, 2009)................ ae

Relevant Statutory and Regulatory

I soci elec i ule alates vacwade caveeucense’

Clean Water Act § 101(a)(1), (d);

3S U.5.C. $5 1Z61(a)(1), (G) «...c0cescrs00000

Clean Water Act § 104(1)(1), (2),

and (p); 33 U.S.C. § 1254(1)(1), (2),

ae el Pd oc nesuaneeisian

Clean Water Act § 208(b);

Be es BOUND visi casessssvscnvesnecscenvens

Clean Water Act § 301(a), (b), and

(e); 33 U.S.C. § 1311(a), (b), and (e).........

(v)

Page

rae ae la

eseeser “4 &

eet

a re

sounes tiene

TABLE OF CONTENTS

Continued

Page

Clean Water Act § 303(c), (d)

and (e); 33 U.S.C. § 1313(e), (d)

and (e)........ ate aera re ee ee aoe ona Se 45a

Clean Water Act § 306(a)(1) and (2);

33 U.S.C. & LSIGCANT) ON CZ) nn rcccrsecsesesccsssseoeet 24a

Clean Water Act § 309(b) and (d);

83 U.S.C. & LSITG) Wii (G).....cccescscccecsesceceses0. OO

Clean Water Act § 319(a)(1)(A),

(B), and (C); 33 U.S.C. § 13829(a)(1)(A),

an? STR el 8 a OP oe a ....p6Aa

Clean Water Act § 402(a) and (b);

33 U.S.C. § 1342(a) and (D).........ccsccceseees ee: 98a

Clean Water Act § 501(a);

ee PR ee OE RD cickcsisaisacanveskvasecsosesvisnsivncoces Ol

Clean Water Act § 502(6), (11),

(12), and (14); 33 U.S.C. § 13862(6),

Oe ye ee PE I ssa ec cachuah upivecaccaseuwecen 6la

Clean Water Act § 505(a), (f),

and (g); 33 U.S.C. § 1365(a), (H,

and (g) ........: reusuant atic cruaenieastaenes Poe 63a

Federal Insecticide, Fungicide, and

Rodenticide Act § 2(bb);

Fee NE coisa csinyesnves cds aeavenseess tevaineaen 65a

TABLE OF CONTENTS

Continued

Kederal Insecticide, Fungicide, and

Rodenticide Act § 3(c)(5);

7 U.S.C. § 136a(c)(5) cccccesscseceseeseees aah

Federal Insecticide, Fungicide, and

Rodenticide Act § 12(a)(2)(G);

7 U.S.C. § 136j(a)(2)(G) ..cccccccscsseseeseeeeeees

Final Rule: Application of Pesticides

to Waters of the United States in

Complhiance With FIFRA.................... |

Respondent United States

Environmental Protection Agency’s

Motion For Stay Of Mandate

Respondent United States

Environmental Protection Agency’s

Reply Brief In Support Of Motion

(vil)

Page

sépuntie 66a

TABLE OF AUTHORITIES

Page

Cases

Altman v. Town of Amherst, N_Y.,

OT FOG, Pas Ge CEE CAT. ZOOD) .......cessccccescscveccees 8

Ass'n to Protect Hammersley, Eld, and Totten

Inlets v. Taylor Res., Inc.,

299 F.3d 1007 (9th Cir. 2002)......... | 36

Brown v. Gardner, 513 U.S. 115 (1994) ..................28

Burlington N. & Santa Fe Ry. Co. v. United

States,

nnn. ccaccncvevccevcsccsccscccscccceccs 25

Chevron v. Natural Res. Def. Ctr.,

ccc sc ccensssccnctscccscccscsccess passim

Coeur Alaska, Inc. v. Se. Alaska

Conservation Council,

ca scoscescecconscevecssoses: 3, 13

Ctr. for Native Ecosystems v. Cables,

609 F.3d 1310 (10th Cir. 2007)..............cccccscsesseveee 4

Dauts v. United States,

Nn ends scssesonsceccovccescseccccsces 34

Entergy Corp. v. Riverkeeper, Inc.,

TED oo. ssc scnssnscaccccccscvoncsccesecs 22, 26

Fairhurst v. Hagener,

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

Food & Drug Admin. v. Brown & Williamson

Tobacco Corp.,

529 U.S. 120 (2000)...... 27, 30, 32

(vill)

TABLE OF AUTHORITIES

Continued

Page

Guardians Ass'n v. Civil Serv. Comm'n of the

City of New York,

463 U.S. BSEZ (1 OBS) ....ccccocossccccccccsecceess caaaaaa pas eee 34

Headwaters, Inc. v. Talent Irrigation Dist.,

243 F.3d 526 (9th Cir. 2001) 7

League of Wilderness Defenders/ Blue

Mountain Biodiversity Project v. Forsgren,

309 F.3d 1181 (9th Cir. 2002)...............scc0e00. cnet

Miccosukee Tribe of Indians v. Fla. Water

Mgmt. Dist.,

280 F.3d 1364 (11th Cir. 2002),

pected, B41 U.S, OB CODED civccccsccccccsccccccevcccccccce: 23

Nat'l Ass'n of Home Builders v. Defenders of

Wildlife,

ES rks Te CED cnncccnacdcucneanncecauvssuessucceativdeuuaas 27

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

BE Fee ee Ce Garde BD cesccencsciccavecsiesaciaccrsavencs 8

Thomas v. Jackson,

581 F.3d 658 (8th Cir. 2009)................. aaensennae 4

Train v. Colo, Pub. Interest Research Group,

Ge Baa 0 UO ic kccukcsence dccuccevousdsscvavendedeciacscncuccenae

United States v. Am. Trucking Ass’n,

Ue cee CRM 1 EE cc cccacduacucuuseauecetscucdcesincessconsensi 36

Waterkeeper Alliance, Inc. v. Envtl. Prot.

Agency,

399 F.3d 486 (2d Cir. 2005) ......... cakensusenes eee

Whitman v. Am. Trucking Assn,

531 U.S. 457 (2001)

TABLE OF AUTHORITIES

Continued

ie’ 4

Zuni Pub. School Dist. No. 80 v. Dep't o/

Educ...

350 U.S. 81 (2007) 28

Statutes

28 U.S.C. § 1254(1)

CLEAN WATER ACT, 33 U.S.C. §§ 1257-1387 passin

CWA § 101(a)(1), 33 U.S.C. § 1251(a)(1) 5, 3]

CWA § 101(d). 33 U.S.C. § 1251(d)

CWA § 104(1)(1)-(2),

33 U.S.C. § 1254(1)(1)-(2) », 29

CWA § 104(p), 33 U.S.C. § 1254(p) Do, 29

CWA § 208(b), 33 U.S.C. § 1288(b).

CWA § 208(b)(F), 33 U.S.C. § 1288(b)(F) ....4, 5, 29

CWA § 301(a), 33 U.S.C. § 1311(a) 2

CWA § 301(b)(1)(C),

33 U.S.C. § 1311(b)(1)(C) {

CWA § 301(b)(2)(A),

33 U.S.C. § 1311(b)(2)(A) 3

CWA § 301(e), 33 U.S.C. § 1311(e) 3

CW.

(oW

§ 303, 33 U.S.C. § 1313

§ 303(c)-(e), 83 ULS.C. § 1313(c)-(e)

CWA § 309(b), 33 U.S.C. § 1319(b)

CWA § 309(d), 33 U.S.C. §& 1319(d)

CWA § 402(a)-(b). 33 U.S.C. § 1342(a)-(b)

\§

S Ol(a) 33 U SC ~ L461(a)

CW.

TABLE OF AUTHORITIES

Continued

Page

CWA § 502(6), 33 U.S.C § 1362(6)......... sossssesdn GU

CWA § 502(11), 33 U.S.C. § 1362(11)... Pe

CWA § 502(12), 33 U.S.C. § 1362(12).............. 2

CWA § 502(14), 33 U.S.C. § 1362(14).. beaena el

CWA § 508(a), 33 U.S.C. § 1368(a)...............ccccesee. 4

FEDERAL INSECTICIDE, FUNGICIDE AND

RODENTICIDE ACT,

Fas ke Be LE vena uci ondkicdoteasinsascacescness passim

FIFRA § 2(bb), 7 U.S.C. § 136(bb).......................38

FIFRA § 3(c)(5), 7 U.S.C. § 1386a(c)(5) ............. 6, 33

FIFRA § 12, 7 U.S.C. § 136(j) ..cccccccccccceeceeseeeseseees 32

FIFRA § 12(a)(2)(G),

FUG... © TSG IMG) ooccccccecccccessccccscccsscesseeccesooes 6

Regulations

BE Ce ele BF NG TOO ces eiesccscistccvencecoscsecs Seenwennaiaien 4,6

ED Gr cae ae CI acncacsdecccnctaceccsescesess voaadues 12

Other Authorities

Pub. L. 92-500, § 309(d), 68 Stat. 860 (1972)............ 4

Pub. L. No. 92-516, 86 Stat. 973 (1972) ...... ..5, 6, 32

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

U.S.C.C.A.N 3668.... peaean 29, 30

S. Rep. No. 92-838 (1972), as reprinted in

1972 U.'S.C.C.A.N. 3993 - | 6, 32

68 Fed. Reg. 48,385 (Aug. 13, 2003)....... ae

70 Fed. Reg. 5,093 (Feb. 1, 2005)................... cece eee. 8

(x1)

TABLE OF AUTHORITIES

Continued

7h POG. ROG. GEASS COV. 27, ZOOS) ooviccesesvcscovesssccss ces 8

ia Fea. Reg. 33,697 Wune 13, 2008)....................5... 80

Backlog Reduction, NPDES Program Basics,

available at http://cfpub.epa.gov/

npdes/permitissuance/backlog.cfm.................0.66. 19

Mosquito-Borne Diseases, American

Mosquito Control Association, available at

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

information/mosquito-borne.aspXx.........0.c..cceceeeees 17

(x11)

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully submit this petition for

a writ of certiorari to review the judgment of the

United States Court of Appeals for the Sixth Circuit.

OPINION BELOW

The court of appeals’ opinion is reported at 553

F.3d 927. App., infra, 1a.

JURISDICTION

The court of appeals filed its opinion on January

7, 2009, and denied petitioners’ timely filed petition

for rehearing and rehearing en banc on August 3,

2009. This Court’s jurisdiction rests on 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

The pertinent provisions of the Clean Water

Act, 338 U.S.C. §§ 1257-1387, are set forth in the

Appendix, infra, at 3la-64a.

STATEMENT OF THE CASE

This petition arises from the Sixth Cuircuit’s

reversal of more than three decades of United States

Environmental Protection Agency (“EPA”) practice

and policy in administering the Clean Water Act

(““CWA” or “the Act”). Since Congress enacted the

CWA in 1972, EPA has never subjected the use of

pesticides in, over, or near waters to CWA National

Pollutant Discharge Elimination System (“NPDES”)

permitting. A series of citizen lawsuits beginning in

the late 1990s generated several Ninth Circuit

decisions that created confusion and concern among

pesticide users regarding the interpretation of the

CWA with regard to pesticide use. In response, EPA

issued guidance and _ ultimately undertook

(1)

rulemaking to clarify and formalize the agency’s

interpretation. The resulting regulation (the “Rule’”)

clearly defines specific circumstances in which the

use of pesticides in accordance with all relevant

requirements under the Federal Insecticide,

Fungicide and Rodenticide Act (“FIFRA”) is not a

CWA “discharge of a pollutant,” explaining in detail

the rationale for the agency’s interpretation.

Environmental groups, as well as farm and

pesticide industry groups, filed petitions for review

of the Rule in the First, Second, Third, Fourth, Fifth,

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

Circuits. The petitions were consolidated in the

Sixth Circuit, which held that the CWA precludes

EPA's interpretation. The court reached this

conclusion based solely on the “plain meaning” of the

provisions at issue and the statute’s general policy

goals — which do not specifically address pesticides —

and without regard to statutory and historic context

that show Congress’s clearly expressed intent not to

regulate pesticide use under the CWA. The result,

absent review by this Court, will be the most

sweeping expansion in the history of this important

regulatory program.

A. Statutory Background

Section 301l(a) of the CWA prohibits the

“discharge of a pollutant” by any person except in

compliance with certain enumerated provisions. 33

U.S.C. §1811(a), App. 40a. The Act defines

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

any pollutant to navigable waters from any point

source.” Id. § 13862(12), App. 62a. It defines

“pollutant” to mean several specifically lsted

categories of materials, including “chemical wastes”

and “biological materials.” Jd. § 1362(6), App. 61la-

)

62a. EPA is charged with the _ general

administration of the Act and is authorized to

“prescribe such regulations as are necessary to carry

out [its] functions under [the Act].” Jd. §§ 1251(d),

1361(a), App. 31a, 61a.

A central goal of the CWA is the elimination of

all point source “discharges” of pollutants into

navigable waters. See id. §§ 1251(a)(1) (establishing

“the national goal that the discharge of pollutants

into the navigable waters be eliminated by 1985”),

App. 31a; 1311(a) (discharge prohibition), App. 40a;

1342 (establishing the National Pollutant Discharge

Elimination System), App. 58a-60a. Under the

NPDES program, however, EPA or an authorized

State agency may, after public notice and an

opportunity for public hearing, issue a permit for the

“discharge of a pollutant” if certain terms and

conditions are met.! Id. § 1342(a)-(b), App. 58a-60a.

NPDES permits must include “effluent

limitations” to restrict the “quantities, rates, and

concentrations” of constituents in the_ effluent

discharge.2 Id. §§ 1362(11), App. 62a; 1311(e), App.

! Discharges of “dredged or fill material” are addressed

under a separate program pursuant to CWA Section 404,

administered by the U.S. Army Corps of Engineers. See Coeur

Alaska, Inc. v. Se. Alaska Conservation Council, 129 S. Ct.

2458, 2463 (2009).

¢ The staadard that governs effluent limitations for most

pollutants 1s set forth at Section 301(b)(2)(A), which requires

“the best available technology economically achievable

...(which] shall require the elimination of discharges of all

pollutants if the [EPA] finds ... that such elimination is

economically achievable ....".) 33 U.S.C. § 1311(b)(2)(A), App.

41a-42a.

45a. In addition to technology-based limits, the

permit must impose any more stringent limits

“necessary to meet water quality standards.” dd.

§ 1311(b)(1)(C), App. 41a. The maximum civil

penalty for any unauthorized pollutant discharge or

violation of permit conditions is $387,500 per

violation, per day.* See id. § 13819(d), App. 55a; 40

C.F.R. § 19.4 (2009). Violations may be enforced by

EPA or any interested citizen. See id. §§ 1319(b),

1365(a), App. 55a, 63a.

Not all sources of water pollution are regulated

under the CWA. Sources not defined as a “discharge

of a pollutant” but that nevertheless affect water

quality are broadly categorized as “nonpoint

sources.”' Nonpoint sources are addressed through a

variety of non-regulatory, mostly State-controlled

programs. The CWA water quality standards

program, for example, broadly applics to all sources

of water pollution, whether or not they are subject to

NPDES permits. See id. §1313. Under that

program, States establish water quality goals,

identify waters where those goals are not being

attained, and establish a “continuing planning

% The original maximum civil penalty was $10,000. See

Pub. L. 92-500, § 309(d), 68 Stat. 860 (1972).

4 The term “nonpoint source” is not defined in the CWA,

but generally encompasses every source of water pollution that

is not a regulated point source discharge. See Ctr. for Native

Ecosystems v. Cables, 509 F.3d 1310, 1331 (Oth Cir. 2007);

Thomas v. Jackson, 581 F.3d 658, 661 n.4 (8th Cir. 2009).

Agricultural activities in particular have traditionally been

viewed as nonpoint sources and have been targeted’ by

Congress for specific exclusions from “point source” regulation.

See 33 U.S.C. §§ 1288(b)(F), 1362(14), App. 62a.

process,” subject to EPA approval, applicable to all

navigable waters. Jd. § 1313(c), (d), (e), App. 45a-

o4a.

The Section 208 program also addresses

nonpoint sources, calling for area-wide waste

treatment management plans developed by state or

local entities. Jd. § 1288(b), App. 33a-40a. Such

plans must be applicable to “all wastes generated

within the area involved,” including control of

“agriculturally and silviculturally related nonpoint

sources” Id. § 1288(b)(F), App. 36a. In addition,

CWA Section 104(p) requires “a comprehensive

study and research program to determine new and

improved methods ... of preventing, reducing, and

eliminating pollution from agriculture.” Id.

§ 1254(p), App. 33a.

Section 104(l) is (and was in 1972) the only

CWA provision that refers to the water quality

impact of pesticides. That provision required:

(1) that EPA develop and issue by 1973 information

on the effects of pesticides in water, and (2) that the

President investigate the “methods to control the

release of pesticides into the environment [including]

examination of the persistency of pesticides in the

water environment and alternatives thereto.” Id.

§ 1254(1)(1)-(2), App. 32a-338a. The Act directed the

President to report to Congress on his investigations

“together with his recommendations for any

necessary legislation.” /d. § 1254(1)(2), App. 32a-33a.

Three days after Congress enacted the CWA, it

passed comprehensive amendments to FIFRA, the

statute that regulates the sale, distribution, and use

of pesticides. See 7 U.S.C. §§ 136-136y; Pub. L. No.

92-516, 86 Stat. 973 (1972). Recognizing that

pesticides “have important environmental effects,

both beneficial and deleterious,” Congress found that

“wise control based on a careful balancing of benefit

versus risk to determine what is best for man is

essential.” S. Rep. No. 92-838, at 4 (1972), as

reprinted tin 1972 U.S.C.C.A.N. 3993, 3996

(emphasis added). Accordingly, in the 1972 FIFRA

amendments, Congress created a scheme in which

EPA would assess the adverse environmental effects

of registered pesticides and approve label

restrictions to ensure that pesticide use would not

cause “unreasonable adverse effects on _ the

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

136a(c)(5), App. 67a, 66a.

To regulate pesticide application by end users

such as farmers or commercial applicators, the

FIFRA amendments prohibited the use of a

registered pesticide “in a manner inconsistent with

its labeling.” See id. § 136)(a)(2)(G), App. 67a. Any

such use was made subject to maximum civil

penalties of $5,000 (now $7,500) for commercial

applicators, or $1,000 (now $1,100) for private

applicators. Pub. L. No. 92-516, § 14(a)(1)-(2), 86

Stat. 992-93 (1972); 40 C.F.R. § 19.4 (2009).

B. Litigation Leading to the Rule

Allegations that pesticide use should be

regulated as a CWA “pollutant” discharge weexe first

asserted in a series of citizen enforcement suits in

the Ninth and Second Circuits in the late 1990s. See

® Congress also broadened FIFRA’s previous registration

requirement, so that all pesticides sold or distributed in any

State, with certain narrow exclusions, must be registered. See

S. Rep. No. 92-838, at 1 (1972), as reprinted in 1972

U.S.C.C.A.N. 3993, 3994.

App. 75a-77a. These lawsuits generated several

appellate decisions before EPA initiated the

rulemaking at issue here.

In Headwaters, Inc. v. Talent Irrigation District,

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

Circuit held that an unlawful discharge occurred

where the defendant had applied a pesticide to an

irrigation canal, and treated water leaked through a

“waste gate” into a natural, fish-bearing stream

(contrary to pesticide label instructions), reasoning

that residual pesticide remaining after application is

a “chemical waste” and therefore a “pollutant.” Jd.

at 528, 530, 532-33. In League of Wilderness

Defenders/Blue Mountain Biodiversity Project. v.

Forsgren, 309 F.3d 1181, 1183-85 (9th Cir. 2002), the

Ninth Circuit held that aerial spraying of pesticide

to a forest canopy directly over streams was a

“discharge of a pollutant” requiring an NPDES

permit.® By contrast, in Fairhurst v. Hagener, 422

F.3d 1146 (9th Cir. 2005), the Ninth Circuit found no

CWA pollutant discharge and no NPDES permit

requirement where aquatic pesticides were applied

in comphance with FIFRA requirements, left no

residue, and had no “unintended effects.” Jd. at

1151.

The litigation also generated two Second Circuit

decisions that did not reach the merits of the

question addressed in the Rule, but that suggested a

6 The Ninth Circuit mistakenly assumed that the

defendant U.S. Forest Service did not dispute that the pesticide

was a CWA “pollutant.” See 309 F.3d at 1184 n.2; App. 75a.

Thus, the court’s analysis focused entirely on whether aerial

spray equipment used in forest pest control is a “point source.”

Id. at 1185

need for EPA’s interpretive guidance. In Aliman uv.

Town of Amherst, N.Y., 47 Fed. Appx. 62, 66 (2d Cir.

2002), the Second Circuit vacated the dismissal of a

suit challenging mosquito-control spraying in a

wetland area, finding that the lower court should

have allowed further discovery on the circumstances

of the application.? And in No Spray Coalition, Inc.

v. City of New York, 351 F.3d 602, 605-06 (2d Cir.

2003), the court vacated a district court ruling that

the CWA citizen suit provision is inapplicable to

claims involving pesticide use in_ substantial

compliance with FIFRA, but did not address the

“complex question” of whether such pesticide use is a

CWA discharge of a pollutant. /d. at 606.

C. The Rule and Its Rationale

As the litigation continued, concern = and

confusion grew among farmers, forest landowners,

and public health officials, prompting EPA to issue

guidance and ultimately undertake rulemaking to

clarify its interpretation of the CWA as applied to

pesticide use. The final Rule, 71 Fed. Reg. 68,483-

68,492 (Nov. 27, 2006), is the culmination of a three-

year participatory rulemaking process that began

with an interim interpretive statement in 2003 and

involved two rounds of public comment. See id.,

App. 68a-111a; 68 Fed. Reg. 48,385-48,388 (Aug. 13,

2003); 70 Fed. Reg. 5,093-5,100 (Feb. 1, 2005) (final

interpretive statement and notice of proposed

rulemaking).

’ The court noted that, “[uJntul the EPA articulates a

clear interpretation of current law ... the question of whether

properly used pesticides can become pollutants that violate the

CWA will remain open.” /d. at 67

The Rule broadened the reach of the CWA

relative to EPA’s historic practice of never subjecting

pesticide use to CWA regulation. Under EPA’s

formal interpretation, the application of pesticides

may be deemed a CWA pollutant discharge if the

application is not in accordance with all relevant

FIFRA requirements. However, the Rule provides

that pesticide use in compliance with FIFRA

requirements is not a “discharge of a pollutant” in

two circumstances: (1) application directly to waters,

and (2) application to control pests that may be

present over waters, including near such waters,

where a portion of the pesticides will unavoidably be

deposited to waters in order to target the pests

effectively. App. 110a-111la.

EPA reasoned that the use of chemical

pesticides under the circumstances set forth in the

Rule is not the discharge of a “pollutant.” Jd. 82a.

Such pesticides are not “chemical wastes,” but

products being used for their intended purpose. Jd.

EPA further found it unlikely that Congress

intended to categorize biological pesticides

differently than chemical pesticides, particularly

given that biological pesticides were uncommon

when the CWA definition was enacted and that

modern biological pesticides are typically “reduced-

risk products.” Jd. 83a. For this reason, EPA

concluded that interpreting “biological materials” to

include biological pesticide applications would be

inconsistent with the purposes of the statute. /d.

EPA concluded that excess or residual pesticides

remaining after pesticide use are “pollutants,” but

that the application itself is not a “discharge of a

pollutant” because there is no “pollutant” at the time

of the application. Jd. 86a (application in such

circumstances would “not meet both = statutory

prerequisites (pollutant and point source) at the time

of its discharge into the water’). Thus, EPA

concluded that excess or residual pesticide present in

waters as a result of pesticide use in accordance with

the Rule is nonpoint source pollution to be addressed

through CWA and State programs other than the

NPDES permitting program.® /d. 87a.

D. The Decision Below

The Rule was challenged in eleven courts of

appeals and consolidated in the Sixth Circuit, which

vacated the Rule as contrary to the plain language of

the CWA.9 App. 2a. The court agreed with EPA that

the common meaning of “chemical waste’ is

“discarded,” “superfluous,” or “excess” chemical, but

ruled that any useful chemical containing portions

that will become waste must itself be regulated

under the CWA as a “chemical waste.” Jd. 18a-19a.

Pointing to the Ninth Circuit’s decision in Fairhurst,

the court concluded that all chemical pesticides must

be regulated as “chemical wastes” unless they are

intentionally applied to waters and will leave no

8 EPA explained that where pesticide residues are

discharged “from a point source” such as in industrial

wastewater discharges or regulated stormwater discharges

from municipal or industrial sources such point source

discharges are subject to NPDES permit requirements. App.

85a.

9 Industry and farm petitioners challenged EPA's

interpretation that noncompliance with relevant FIFRA

requirements may cause pesticide use to be deemed a CWA

pollutant discharge, Petitioners are not seeking review of the

denial of those claims.

excess or residual after performing their intended

purpose. Id. 18a.

With regard to biological pesticides, the Sixth

Circuit found that the plain language of the CWA

requires that “matter of a biological nature, such as

biological pesticides” be deemed a pollutant. /d. 21a.

Thus, any biological pesticide, regardless of whether

it will leave any excess or residual after performing

its function, must be deemed a CWA “pollutant.”

The court rejected EPA’s conclusion that Congress

should not be presumed to have intended different

treatment for chemical and biological pesticides. Id.

22a. Instead, the Sixth Circuit concluded that “if we

are to give meaning to the word ‘waste’ in ‘chemical

waste,’ we must recognize Congress's intent to treat

biological and chemical pesticides differently.” Id.

The Sixth Circuit also concluded that “pesticide

residue or excess pesticide — even if treated as

distinct from pesticide — is discharged from a point

source.” Jd. 26a. The court ruled that the CWA

phrase “from a point source” can only mean “by a

point source.” Jd. 26a-27a. Further, pollutants are

discharged “by” a point source whenever the point

source is a “but for” cause of the addition of

pollutants to navigable waters; the substance need

not be a “pollutant” at the time it comes “from” the

point source. Id.

Accordingly, the court vacated the Rule,

concluding that “dischargers of pesticide pollutants

are subject to the NPDES permitting program.” /d.

27a-28a.

Kk. EPA’s Response to the Decision

Although EPA vigorously defended the Rule

before the Sixth Circuit, it has acquiesced to the

court’s decision under a new Administration. The

United States did not seek rehearing and, instead

took the position that further review was not

warranted because EPA and the NPDES-authorized

state agencies can manage permitting for pesticide

use through the device of “general permits”

authorized under EPA rules. See App. 116a-117a; 40

C.F.R. § 122.28 (2009).

EPA has not, however, disavowed the policy and

legal determinations made in the Rule. Moreover,

the agency has acknowledged the dramatic change

and threat of substantial harm that the Sixth

Circuit’s ruling will produce. Indeed, EPA has

argued that the unavailability of permits would

cause “serious disruption of public health initiatives,

agriculture and other activities.” App. 128a. EPA

also described the substantial administrative

burdens and resource demands associated with

general permit issuance, while also highlighting the

severe ($700,000,000 to $1 billion) budget shortfall

already faced by State NPDES permitting agencies.

Id. 142a, 147a-161a. EPA successfully urged the

Sixth Circuit to stay its mandate to allow two years

for EPA and the 46 authorized State agencies to

attempt to develop “general permits” to authorize at

least some of the estimated 5.6 million pesticide

applications annually that will now need permit

coverage. See App. 124a, 1l3la.

REASONS FOR GRANTING THE WRIT

Left undisturbed, the decision of the Sixth

Circuit will overturn more than three decades of

EPA practice and bring about the greatest expansion

of the NPDES program since the CWA was enacted

in 1972. It will sweep into that program an

estimated 5.6 million’ pesticide applications

annually. The affected pesticide users include local

governments that apply pesticides to control

mosquitoes to protect public health, farmers who use

pesticides to save crops, foresters who use pesticides

to protect timber, and even federal entities like the

U.S. Coast Guard and U.S. Department of

Agriculture (“USDA”). App. 1l5a, 129a. Few

decisions in the history of the CWA have had such a

far-reaching and disruptive impact. The decision

thus has dramatic implications for the

administration of an important federal regulatory

program and for our nation’s health and welfare.

The Sixth Circuit found that the CWA

unambiguously requires the regulation of pesticide

use as a “pollutant” discharge. To reach this result,

the court flouted the teachings of this Court in

Chevron v. Natural Resources Defense Center, 467

U.S. 837 (1984), and dozens of subsequent decisions

up through Coeur Alaska, 129 S. Ct. at 2463, this

past Term. The court preemptively substituted its

own “plain” reading of the governing statutory

provisions in place of EPA’s patently reasonable

interpretation. Then, having declared the text of the

governing provisions “plain,” the court looked no

further, ignoring statutory and historic context that

make quite clear Congress’s decision not to require

CWA permitting for pesticide use.

The Court should grant the petition to restore

EPA’s reasonable interpretation of this complex

statutory scheme and maintain the proper scope of

this important federal regulatory program. Absent

review in this case, there will be no further

opportunity for review before CWA liability and

permitting requirements are imposed on virtually all

pesticide use in, over, or near waters. Review should

also be granted to reinforce this Court’s requirement

of a meaningful inquiry into Congress’s expressed

intent as a prerequisite to invalidating an agency

rule. There is room enough for error when courts

employ the “traditional tools” of statutory

construction to discern the meaning of Congress’s

words. When courts ignore those tools, the process

of judicial review loses integrity and both agencies

and the regulated public are left at the whim of

judicial policy-making.

I THE BROAD REACH AND HARMFUL

IMPACT OF THE SIXTH CIRCUIT'S

DECISION MAKE THIS A CASE OF

EXCEPTIONAL IMPORTANCE.

Under the Sixth Circuit’s decision, hundreds of

thousands of individuals, businesses, and

government entities will, for the first time, be

prohibited from using pesticides in, over, or near

waters unless they obtain authorization to do so

under an NPDES permit. The newly regulated

entities will perhaps double, perhaps far more than

double, the size of the NPDES permitting program.

The affected pest control activities — now to be

deemed unlawful absent an NPDES permit — protect

our public health, our homes and communities, and

the croplands and forestlands vital to our nation’s

food supply, security, and economy. They control

“mosquitoes, which transmit infectious diseases such

as encephalitis and West Nile Virus; gypsy moths,

which defoliate forests causing growth loss or the

death of trees; algae and weeds, which can clog

irrigation canals reducing the amount of water

available to irrigate crops; and invasive species such

as zebra mussels, which attach to and block water

intakes for municipal water supplies § and

hydroclectric plants.” App. 145a. The Sixth

Circuit’s decision sweeping these vital pest control

activities into the onerous liability and permitting

regime of the NPDES program threaten dire

consequences, particularly in the areas of mosquito

control and crop protection.

A. The Decision Overturns Three Decades

of EPA Practice and Will Dramatically

Expand the Scope of the NPDES

Program.

In more than 35 years of administering the

CWA, EPA has never issued an NPDES permit for

the application of a pesticide or issued any policy

interpretation or guidance indicating that such

permits were required. See App. 73a. By sweeping

pesticide use into the CWA ban on “pollutant”

discharges, the Sixth Circuit’s decision will single-

handedly expand the universe of NPDES permittees

by nearly double — perhaps by many times more. See

id. 141a-142a.

In general, EPA estimates tnat the number of

non-stormwater discharges regulated under NPDES

permits has been relatively stable at around 100,000

facilities since the 1970s, until a recent Ninth

Circuit decision required the addition of roughly

70,000 vessel (shipping) discharges. Jd. 14la. Since

the 1990s, the program has also included certain

regulated stormwater discharges, which _ today

account for roughly 353,500 permitted facilities each

year. Id. 141a-142a. Thus, the combined number of

facilities permitted within the current program is

roughly 520,000. EPA calculates that under a

narrow reading of the Sixth Circuit's decision, and

estimating pesticide applications from only eight

categories of pesticide use patterns (e.g., “insecticides

used in wide-area insect suppression programs’), the

decision will require NPDES permits for roughly 5.6

million pesticide applications per year, by

roughly 365,000 “applicators.”!° Jd. 145a.

The impact on the scope of the permitting

program could be far greater than even these figures

suggest. EPA’s current figures do not include, for

example, pesticide application to water-dependent

crops, such as rice, or to terrestrial cropland where

drainage ditches or “wetland” areas are within or

adjacent to cropped areas. The 5.6 million

applications per year included in EPA’s current

projections, therefore, are likely the tip of the iceberg

— even under a narrow reading of the court’s ruling.

Of course, many advocates will urge a far

broader reading of the Sixth Circuit’s decision that,

if adopted, would again multiply the number of

pesticide uses covered. While EPA’s current plans

are limited to pesticide application in, over, and

10 EPA's estimate of the number of affected “applicators”

presumably refers to commercial applicators. Yet the entity

responsible for securing permit coverage will more likely be the

farmer, forest landowner, county, etc. who makes the decision

to use pesticide. Petitioners are aware of no estimate of the

total number of entities needing permit coverage under the

court's decision.

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

miniscule amounts of pesticide into waters. Such

“drift” is arguably within the scope of the Sixth

Circuit’s flawed reasoning and will certainly be the

subject of the next wave of citizen lawsuits.

B. The Decision Threatens’ Essential

Activities That Protect Our Nation’s

Public Health and Food Supply.

1. Worldwide, “[m]Josquitoes cause more

human suffering than any other organism — over one

million people die from mosquito-borne diseases

every year.”!! In the United States, pesticides play a

critical role in controlling the mosquito population.

More than a thousand local government entities

apply pesticides to, over, or near waters to control

mosquito populations in the United States. See App.

145a. Simply put, anything that significantly

curtails the use of pesticides in, over, and near

waters threatens public health with outbreaks of

West Nile virus, encephalitis, Dengue fever, and

other mosquito-borne diseases. There is no vaccine

or cure for these diseases, which are controlled only

by controlling mosquito populations.

If the Sixth Circuit’s decision stands, CWA

hability and citizen suit enforcement will serve as a

serious impediment to pesticide applications to

control mosquito-borne diseases. As EPA has

explained, the potential unavailability of permits

when needed would “result in increased threats to

public health because most efforts to control

Mosquito-Borne Diseases, American Mosquito Control

Association, available a! http://www.mosquito.org/mosquito

information/mosquito-borne.aspx.

mosquitos [sic], which transmit several debilitating

diseases, will cease or risk CWA enforcement.” App.

189a. Even in the event that EPA and the 46

NPDES-authorized State permitting agencies

ultimately manage to issue “general permits” to

cover many pesticide application scenarios — and

then successfully defend those permits in litigation —

there is an irreconcilable tension between an NPDES

program focused narrowly on eliminating (or at least

minimizing) the “pollutant” discharge and the needs

of mosquito abatement programs focused on

eradicating (or at least minimizing) mosquituo-borne

disease. If pesticide application is curtailed, public

health officials will lose their best tool, mosquito

populations will multiply, and mosquito-borne

disease in the United States will spread.

2. The injection of NPDES permitting

requirements into the highly precise and science-

based process of modern crop protection also poses a

substantial threat to the nation’s supply of food and

fiber. See App. 194a. Farmers use pesticides to

protect food and non-food crops from infestation and

loss due to weeds, insect pests, and disease. Even

slight delays in application can result in less

effective crop protection, the spread of pests and

disease, and significant crop loss. Jd. As USDA

Secretary Thomas Vilsack explained in urging EPA

to pursue review of the Sixth Circuit decision, delays

due to NPDES permitting requirements “could

cripple American farmers’ emergency pest

management efforts and hamper their ability to

respond quickly to new infestations or threats of

infestations, thus increasing the risk of crop

losses.”!2 Id. 208a.

The risk of delay goes beyond farmers’

pocketbooks and threatens national security and

food supply. As EPA has explained, “federal

agencies, working with state partners and growers

must maintain the ability to respond immediately by

application of pesticides, including aerial application

if necessary, to deliberate or inadvertent

introductions of new pests or diseases which may

threaten the biosecurity of the United States. For

example, a sudden large-scale introduction of Foot

and Mouth disease, wheat rust or soybean red leaf

blotch could threaten the U.S. food supply.” App.

171a.

Effective crop protection also depends on

farmers’ ability to use carefully prescribed products

and combinations of products at appropriate rates

based on the particular crop, pest, and site-specific

conditions at issue. See id. 194a-196a. NPDES

permitting would add to this calculus a further layer

of restrictions aimed squarely at minimizing (indeed,

eliminating) the “pollutant” discharge, without

12 Fears of permitting delays are well founded based on

the history of NPDES permitting. See Backlog Reduction,

NPDES Program Basics, available at http://cfpub.epa.gov/

npdes/permitissuance/backlog.cfm. Moreover, the theoretical

possibility that EPA and 46 State permitting agencies may

issue general permits offers little reassurance that permit

coverage will be readily available. Environmental interest

groups claim that site-specific control measures and water-

quality impacts must be subject to agency review and public

participation. See, e.g., Waterkeeper Alliance, Inc. v. Enutl.

Prot. Agency, 399 F.3d 486, 503 (2d Cir. 2005).

regard for the essential function to be served by the

so-called “pollutant.” The result is that the rate and

manner of pesticide application that most effectively

controls crop infestation and disease likely will not

coincide with the rate and manner of application

prescribed under an NPDES permit.

ii. THE DECISION BELOW TRAMPLES

SETTLED PRINCIPLES OF JUDICIAL

REVIEW AND CONFLICTS WITH

DECISIONS OF THIS COURT AND OTHER

CIRCUITS.

The Rule reasonably establishes that the

intentional application of pesticides in accordance

with all relevant FIFRA requirements is not a

discharge of a “pollutant ... from a point source”

under the CWA — based largely on the CWA’s

definition of “pollutant” to include “chemical wastes,”

but not useful chemical products. The Sixth

Circuit’s decision runs roughshod over the statutory

scheme and EPA’s patently reasonable

interpretation to declare its “plain language” ruling.

The decision ignores settled rules of statutory

interpretation and cannot be reconciled with this

Court’s precedents.

A. The Sixth Circuit’s Reading of

“Chemical Wastes” and “From a Point

Source” Overrides’ the Common

Meaning of Those Terms.

1. The Sixth Circuit found that “chemical

waste” must be read to include chemical products in

use for their intended purpose if the use of the

product will result in waste. App. 19a-20a.

Essentially, the court held that “chemical waste”

unambiguously encompasses chemicals that will

become waste. Id. The court based this conclusion

on plain’ language, notwithstanding: (a) its

agreement with EPA that the common meaning of

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

“excess” chemical, and (b)the Rule’s focus on

pesticides intentionally applied to, over, or near

water in order to perform their purpose (the control

of pests located in, over, or near water). Jd. 18a,

110a-llla. The court apparently viewed chemical

products in use for their intended purpose as

indistinct from the chemical wastes that may remain

after their use.!5 The court concluded that any

chemical containing portions that will become waste

must itself be regulated as a “chemical waste.” See

id. 20a (“If, on the other hand, a chemical pesticide is

known to have lasting effects beyond the pesticide’s

intended object, then its use must be regulated

under the Clean Water Act.”)

The court’s interpretation of “chemical wastes”

stretches logic and English usage past the breaking

point. No common understanding of the term

“chemical wastes” would encompass all chemicals

containing portions that will become waste. Yet the

Sixth Circuit reached its interpretation on the basis

of those words alone — citing nothing in the CWA or

its history to suggest that Congress intended such a

result. Jd. 19a-20a. Even if the words “chemical

wastes” could plausibly be construed to include

13° See id. 20a (when pesticides are intentionally applied

to control pests in water, “both non-waste aqueous pesticide

and pesticide residual are applied to the water at the same

moment”); id. 26a (“pesticide residue or excess pesticide — even

if treated as distinct from pesticide — is a pollutant discharged

from a point source”) (emphasis added).

products that have immediate value but that will

become waste, those words can also reasonably be

construed to exclude chemicals being used for their

intended purpose. EPA’s reasonable interpretation

therefore must be upheld under this Court's

precedents. See Entergy Corp. v. Riverkeeper, Inc.,

129 S. Ct. 1498, 1506 (2009) (rule upheld where

statute does not “unambiguously preclude” EPA’s

interpretation).

2. The Sixth Circuit’s interpretation of the

CWA _ phrase “from a_ point source” is also

fundamentally flawed. App. 23a-27a. As interpreted

by EPA in the Rule, “pollutant ... from a_ point

source” means that the substance at issue is a

“pollutant” when it comes “from” the point source

conveyance. App. 86a. This follows the common

understanding of “from.” One cannot spray ice

“from” a hose, even though water sprayed from a

hose may later become ice. Nor can one squeeze

butter “from” a cow. Likewise, pesticide waste is not

discharged “from” application equipment during

pesticide use, even if some portion of the pesticide

may subsequently miss its target or leave residue in

the environment. At the very least, this reading is

permissible and must therefore be upheld.!4

14 The Sixth Circuit observed that EPA “offer[ed] no

direct support for its assertion that a pesticide must be ‘excess’

or ‘residue’ at the time of discharge if it 1s to be considered as

discharged from a ‘point source.” App. 24a (emphasis in

original). Yet the only “support” needed by the agency is the

statute itself, which plainly allows (if not dictates) EPA's

interpretation. As explained in Entergy, 129 S.Ct. at 1507, the

mere fact that a statute does not explicitly require a particular

construction does not mean that such an interpretation is

(continued...)

The Sixth Circuit, however, held that EPA’s

construction was categorically foreclosed by CWA.

According to the court, the CWA phrase “from a

point source” can only mean “by a point source.”

App. 26a-27a. Thus, in the court’s view, pesticide

waste is discharged “from” a point source if it is

added to waters “by” a point source. Jd. The court

then reasoned that pollutants are added “by” a point

source whenever the point source is a “but for” cause

of the addition of pollutants to navigable waters. 7d.

The Sixth Circuit arrived at its unlikely

interpretation with absolutely no discussion of the

common understanding of the word “from” or of the

plausibility of EPA’s construction. App. 24a-27a.

Instead, the court relied on a separate EPA

rulemaking and an Eleventh Circuit decision

concerning a completely unrelated issue. Jd. 25a-

27a. Both of these authorities addressed whether

the transfer of polluted waters from one waterbody

into another is an “addition of any pollutant to

navigable waters from any point source.” See 73

Fed. Reg. 33,697, 33,701 (June 13, 2008); Miccosukee

Tribe of Indians v. Fla. Water Mgmt. Dist., 280 F.3d

1364, 1368 (11th Cir. 2002), vacated, 541 U.S. 95

(2004). Neither authority remotely bears on whether

pollutants are discharged “from” a point source when

the substance is not yet a “pollutant” at the time of

(continued)

precluded. The Sixth Circuit lost sight of this distinction when

if found EPA may not interpret the CWA to require all

elements of a “discharge of a pollutant” to be present at the

same time unless the statute spells that out. The practical

result of the court's approach is that ambiguity weighs against

the agency, not in its favor as Chevron dictates.

the purported discharge. These extraneous

materials shed no light on Congress's’ intent

regarding NPDES permitting for pesticide use and

have no place in a “plain language” decision vacating

the Rule.

3. Aside from its dubious “plain language”

assertion, the Sixth Circuit identified only two

sources of support for its interpretation in all of the

CWA and its legislative history: the general

statutory purpose to protect water quality, and

legislative history purportedly reflecting a desire to

control pollutants “at the source whenever possible.”

App. 25a. Such general policies — which do not

address the precise question at issue — cannot

foreclose a _ reasonable reading of ambiguous

statutory terms. In fact, this was exactly the error

that this Court reversed in Chevron, rejecting an

appellate court's attempt to invoke the general

“purpose of the (Clean Air Act} permit program ... to

improve air quality” to invalidate an agency

interpretation. See 467 U.S. at 841-42. This Court

found that such general purposes were not probative

of the “actual intent of Congress” on the precise

question at issue. Jd. at 861-62. So too here. The

Sixth Circuit’s recasting of the “from a point source”

limit cannot be_ reconciled with this Court’s

admonition that judges interpret the words of

statutes, not rewrite them to better serve the court's

notion of the statutory purpose.

The Sixth Circuit’s overbroad construction of

such common terms as “waste” and “from” suggests

that when a statute has a general beneficial purpose,

the plain meaning of its terms is whatever meaning

achieves the broadest possible’ reading. But

beneficial purposes do not dictate that common

words be given their broadest possible reach;

common language admits of reasonable limits in

accordance with ordinary usage and common sense.

See Burlington Northern & Santa Fe Railway Co. v.

United States, 129 S. Ct. 1870, 1879 (2009)(statutory

terms may not be read to extend liability beyond the

“ordinary meaning” — not the broadest possible

meaning — of those terms). Notwithstanding the

broad goals of the CWA, “chemical waste,” in

common parlance, means chemicals that are waste

not chemicals that will become waste. “Pollutants ...

from a point source,” in common parlance, means

pollutants coming out of a point source — not

pollutants caused by a point source. The words and

their natural reading are fairly simple. The Sixth

Circuits pursuit of statutory goals took them too far.

B. The Decision Contravenes This Court’s

Precedents by Disregarding Statutory

Context and History That Support the

EPA Rule.

The Sixth Circuit's decision omits = any

meaningful inquiry into congressional intent with

regard to permitting requirements for pesticide use.

By prematurely declaring the _ statute’s. plain

meaning at the outset, based on the court’s intuition

about what was intended and without consideration

of the statute’s context, the decision pretermits an

essential part of judicial review and departs from the

settled teachings of this Court. Chevron and many

other cases of this Court demonstrate that

premature declarations of plain meaning are not

appropriate if they serve to cut off real inquiry and

insight into whether Congress actually addressed

the issue in question.

1. The Sixth Circuit purported to reject the

Rule based on what has become known as Chevron

“Step One,” determining whether Congress has

“directly spoken to the precise question at issue.” Cf

Chevron, 467 U.S. at 842 (“First, always, is the

question whether Congress has directly spoken to

the precise question at issue.’). Yet the court

declared the statutory language clear based on an

incomplete analysis, with no consideration § of

contextual evidence of Congress's intent on the

question of permit requirements for pesticide use. In

this respect, the Sixth Circuit’s pre-emptive “Step

One” analysis based on plain language fails to

meaningfully address whether Congress _ has

“directly spoken to the precise question at issue.” In

so doing, the court’s approach also eliminates

entirely any inquiry into whether the agency’s

interpretation of the statute is consistent with the

congressional commands and therefore “permissible”

under Chevron Step Two.'® By simply declaring the

provisions at issue to be plain — when those

provisions surely were susceptible, at a minimum, to

two different interpretations — the Sixth Circuit cut

19 Because the Sixth Circuit purported to stop at

Chevron “Step One,” it entirely omitted any “Step Two” inquiry

into whether EPA's interpretation is permissible. Chevron, 467

U.S. at 843 (“if the statute is silent or ambiguous with respect

to the specific issue, the question for the court is whether the

agency's answer is based on a permissible construction of the

statute’) Of course, the court could have skipped the

“supposedly prior inquiry” of Chevron “Step One” by proceeding

directly to “Step Two.” Entergy, 129 S.Ct. at 1505, n.4

(explaining, “if Congress has directly spoken to an issue then

any agency interpretation contradicting what Congress has

said would be unreasonable”). What the court may not do,

however, is fail to meaningfully address either inquiry

off the analysis at the threshold, without ever

examining the statute as a whole and in context,

either as part of Chevron Step One or Chevron Step

Two.

By declaring statutory language to be plain

when, at best, it can be viewed as such only by

ignoring all statutory and historic evidence to the

contrary, the Sixth Cuircuit’s approach renders

agency interpretive rules vulnerable to the

subjective interpretations and policy making of

judges. That is not what Chevron seeks to

accomplish.

Chevron’s two-step process was intended to

structure the inquiry into Congress’s intent, not

truncate that inquiry. As Chevron and many other

decisions of this Court make plain, in determining

whether a phrase is ambiguous, the court must look

not only at the particular provision at issue, but

must employ all the traditional tools of statutory

construction. Chevron, 467 U.S. at 843, n.9 (“If a

court, employing traditional tools of statutory

construction, ascertains that Congress had an

intention on the precise question at issue, that

intention is the law and must be given effect.”); Nat’

Ass’n of Home Builders v. Defenders of Wildlife, 551

U.S. 644, 666 (2007) (“[t]he meaning — or ambiguity

— of certain words or phrases may only become

evident when placed in _ context.... It is a

fundamental canon of statutory construction that

the words of a statute must be read in their context

and with a view to their place in the overall

statutory scheme.”) (citing ood & Drug Admin. uv.

Brown & Williamson Tobacco Corp., 529 U.S. 120,

132-33 (2000)) (internal quotation marks omitted);

Zuni Pub. School Dist. No. 80 v. Dep't of Educ., 550

U.S. 81, 98 (2007) (“statutory ‘[a]mbiguity is a

creature not [just] of definitional possibilities but

[also] of statutory context.”) (quoting Brown ov.

Gardner, 513 U.S. 115, 118 (1994)).

Had the Sixth Circuit examined the statutory

provisions in context, it would have found

considerable evidence that Congress did consider the

subject of pesticide use in connection with the CWA

and chose not to subject pesticide use to NPDES

permitting. As discussed below, that evidence is

found in the CWA’s specific references to pesticide

use and other agricultural activities in other sections

of the statute. It is also found in the context

provided by the radically different FIFRA scheme

enacted by the same Congress specifically to address

the environmental effects of pesticide use. And

finally, it is found in the contemporaneous

interpretation of EPA, shortly after enactment of

both statutes, at a time when EPA officials had a

strong basis for understanding congressional intent

concerning pesticides use.

2. Within the CWA, Congress specifically

sought to avoid a collision between beneficial

pesticide use and water quality protection by

keeping agricultural activities, including pesticide

use, outside the CWA’s regulatory’ programs.

Congress explicitly considered the water quality

effects of agricultural pesticide use and purposefully

established non-regulatory mechanisms to develop

the information and tools necessary to reduce those

impacts without impairing the use of pesticides for

the production of abundant food and fiber. See supra

page 5.

The Act required EPA to research “new and

improved methods and the better application of

existing methods of preventing, reducing, and

eliminating pollution from agriculture, including the

legal, economic, and other implications of the use of

such methods”). 33 U.S.C. §1254(p), App. 33a.

CWA Section 208 required the establishment of

“areawide waste treatment management plans,” to

be developed by state or local organizations, which

must identify “agriculturaily and _ silviculturally

related nonpoint sources” and “procedures and

methods (including land use requirements) to control

to the extent feasible such sources.” Id. § 1288(b)(F),

App. 36a. These decidedly State-driven, cost-

sensitive programs belie any suggestion. that

Congress intended wide-spread NPDES permitting

requirements for agricultural pesticide use.

Section 104(1) specifically addresses the water

quality impact of pesticides, but does _ not

characterize them as “pollutants.” To the contrary,

it directs the President to investigate “methods to

control the release of pesticides into’ the

environment” and to report back to Congress on

those investigations “together with his

recommendations for any necessary legislation.” 33

U.S.C. §§ 1254(1)(1)-(2), App. 32a-33a. Such

tentative measures show Congress did not treat

pesticide use in, over, or near waters as a “discharge

of a pollutant” subject to the NPDES permitting

requirements.!® Indeed, despite Congress’s specific

16 Contemporaneous statements in the Congress also

reflect that understanding. For example, commenting on these

provisions, Senator Dole explained that they would “place

responsibility on the States for instituting and cxpanding the

contro! of water pollution related to agriculture.” S. Rep. No.

92-414, 90, as reprinted in 1972 US.CC.A.N 3668, 3759

(continued...)

focus on pesticides in Section 104(1), the term is

notably absent from the definition of “pollutant.”

“Pesticides” appears nowhere in the laundry list of

materials that are pollutants. See 33 U.S.C. 1362(6)

(pollutant means, inter alia, “solid waste, incinerator

residue, sewage, garbage, sewage sludge, munitions

chemical wastes, biological materials, ... and

industrial, municipal, and agricultural waste”).

Thus, nowhere in the text or legislative history

of the Act is there any hint that Congress viewed

pesticide use as a “discharge of a pollutant” subject

to NPDES permitting. Given the importance and

widespread use of pesticides for food and fiber

production and other beneficial purposes, it 1s

inconceivable that Congress would have required

NPDES permitting for pesticide use without some

discussion reflected in the legislative history. See

Brown & Williamson, 529 U.S. at 147 (“Given the

economic and political significance of the tobacco

industry at the time, it is extremely unlikely that

Congress could have intended to place tobacco within

the ambit of the [Food Drug and Cosmetic Act]

(continued)

(supplemental views) (emphasis added). He noted the nonpoint

source nature of most agricultural pollution sources - including

pesticide use. Jd. at 3760. And he further emphasized that

“[plesticides provide substantial benefits to mankind by

protecting plants and animals from pest losses.” Jd. at 3760.

In light of these benefits, Senator Dole explained that “(t]he use

of pesticides and other agricultural chemicals will undoubtedly

retain a high level of importance in agriculture for the

foreseeable future. In the meantime efforts at both State and

Federal levels are paying off in securing the registration

[pursuant to FIFRA] and adherence to recommended usages.”

Id.

absent any discussion of the matter.”) As this Court

has observed, Congress “does not hide elephants in

mouseholes.” Whitman v. Am. Trucking Ass’n, 531

U.S. 457, 468 (2001).

Reading the “pollutant” definition and _ its

reference to “chemical wastes” in the context of other

CWA provisions thus makes plain that Congress

considered the water quality impact of pesticide use

and established non-regulatory mechanisms to

address those impacts. At the very least, this

history and context precludes the Sixth Circuit’s

conclusion that Congress unambiguously required

the regulation of pesticide use as a CWA pollutant

discharge.

3. The overall statutory scheme provides

further support for the Rule. The NPDES program

at its core is not a program to regulate beneficial

activities that also can have adverse environmental

effects, but a program to eliminate pollutant

discharges seen as serving no societal good. Supra

pages 3-4. To find that Congress intended to deem

pesticide use to be a “discharge of a pollutant,” one

must conclude that Congress intended in 1972 to

eliminate the use of pesticides (or at least the use of

pesticides in or over waters, including wetlands),

preferably by 1985. See 33 U.S.C. § 1251(a)(1), App.

3la. Yet that conclusion cannot be reconciled with

the CWA provisions and_ statutory’ context

demonstrating Congress's recognition of the vital

role of pesticides in the protection of our nation’s

health and welfare and its specific intent to address

the water quality impact of pesticide use through

State-driven non-regulatory programs. See supra

pages 4-5.

4. The historical context of the CWA’s

enactment further demonstrates congressional

intent regarding pesticide use. Indeed, three days

after passing the 1972 CWA, the same Congress

enacted major FIFRA amendments to “regulate the

use of pesticides to protect man and_ his

environment.” S. Rep. No. 92-838, at 1 (1972), as

reprinted in 1972 U.S.C.C.A.N. at 3993. See Pub. L.

92-516, 86 Stat. 973. The dramatically different

scheme crafted specifically to address’ the

environmental effects of pesticide use leaves no room

for doubt that Congress did not intend to regulate

pesticide use through NPDES permitting. See

Brown & Williamson, 529 U.S. at 133 (“the meaning

of one statute may be affected by other Acts,

particularly where Congress has spoken

subsequently and more specifically to the topic at

hand”).

Unlike the CWA NPDES program, the FIFRA

scheme at its core is a program to regulate beneficial

activities — the sale, distribution and use of

pesticides - that also can have adverse

environmental effects. In FIFRA, Congress created

a scheme in which EPA would assess the adverse

environmental effects, including the effects on

water,!’ of registered pesticides and approve label

restrictions to ensure that the use of the pesticide

would not cause “unreasonable adverse effects on the

environment.”!8 See 7 US.C. §§ 136j(a)(2)(G),

1’ FIFRA defines “environment” to include “water.” 7

U.S.C. § 136).

15 “Unreasonable adverse cffects on the environment”

means “any unreasonable risk to man or the environment,

(continued...)

136a(c)(5), App. 67a, 66a-67a. To regulate the use of

pesticides by end users such as farmers or

commercial applicators, FIFRA prohibited the use of

a registered pesticide “In a manner Inconsistent with

its labeling.” 7 U.S.C. § 136j(a)(2)(G), App. 67a. Yet,

in contrast to CWA pollutant discharge

requirements, there was no FIFRA requirement that

pesticide users seek advance government

authorization to use pesticides and thus no delay in

pesticide use while awaiting government approval of

application at a particular location.

Given Congress’s specific focus in 1972 on

mitigating the environmental effects of pesticide use

through the FIFRA amendments, as well as its

careful attention to limiting pesticide use only upon

careful balancing of risks versus benefits, it is highly

improbable that Congress intended simultaneously

to subject pesticide use to the far more inflexible

scheme of the CWA NPDES program. It is all the

more unlikely that Congress would have done so

without any discussion in the context of enacting

either the CWA or FIFRA amendments.

5. Finally, the regulatory history supports

EPA’s interpretation. Immediately after enactment

of these two contrasting statutory schemes and for

more than three decades’ afterwards, EPA

implemented them to regulate pesticide use under

FIFRA and not under the NPDES permitting

program. EPA’s original, contemporaneous

(continued)

taking into account the economic, social, and environmental

costs and benefits of the use of any pesticide.” See id. § 136(bb),

App. 65a (emphasis added).

interpretation is entitled to weight. See, e.g., Davis

v. United States, 495 U.S. 472, 484 (1990) (“[W]e give

an agency's interpretations and practices

considerable weight where they involve’ the

contemporaneous construction of a statute and

where they have been in long use.”) (citations

omitted); Guardians Ass’n v. Civil Serv. Comm’n of

the City of New York, 463 U.S. 582, 618 (1983) (“As a

contemporaneous construction of a statute by those

charged with setting the law in motion, these

regulations deserve substantial respect in

determining the meaning of [the statute].”)!9 At the

very least, this context — along with ambiguity in the

text and the absence of any contrary indication of

congressional intent — precludes the Sixth Circuit’s

conclusion that Congress has unambiguously

required the regulation of pesticide use as the

“discharge of a pollutant.”

19 The Sixth Circuit did not acknowledge EPA's repeated

statements throughout this proceeding that the agency has

never required or issued an NPDES permit for pesticide use.

Instead, the court cited only EPA requirements that pesticide

labels indicate that pesticide may not be “discharge[d] into

lakes, streams, ponds, or public waters unless in accordance

with an NPDES permit.” App. 6a. These references suggest

that the court misconstrued EPA’s historic position. The

required label statements simply pertain to pesticide waste

that may be contained in industrial effluent or other waste

streams, which is not implicated by the Rule. /d. 85a. They

have no relevance to EPA’s 35-year practice of not requiring

NPDES permitting for pesticide use.

C. The Sixth Circuit’s Reading of

“Biological Materials” Disregards

Statutory Context and Conflicts With

Decisions of This Court and the Ninth

Circuit.

The Sixth Circuit’s neglect of statutory context

also led to its erroneous interpretation of “biological

materials.” Focusing exclusively on the text of the

provision, the Sixth Circuit found that the “plain,

unambiguous nature of this language compels this

Court to find that matter of a biological nature, such

as biological pesticides, qualifies as a _ biological

material and falls under the [CWA].” App. 2la

(emphasis added). Again ignoring all evidence of

Congress’s intent not to regulate pesticide use as a

CWA “pollutant” discharge, the Sixth Circuit did opt

to consider statutory context in just one respect.

Placing great weight on the contrast between

Congress’s reference to “chemical wastes” and

“biological material,” the court found this contrast

dictated even more expansive regulation of biological

pesticides. Id. 22a. As the court explained,

apparently without irony, “if we are to give meaning

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

recognize Congress’s intent to treat biological and

chemical pesticides differently.” Jd. The court thus

decided that EPA must regulate all biological

pesticides in use — regardless of whether they will

leave any residue after their use is complete. /d.

23a.

Contrary to the Sixth Circuit’s reading,

however, both this Court and the Ninth Circuit have

found that the term “materials” in the CWA

pollutant definition (e.g., “biological materials” and

“radioactive materials”) does not unambiguously

include all “matter.” TZrain v. Colo. Pub. Interest

Research Group, 426 U.S. 1, 23-25 (1976) (“Colorado

PIRG”); Ass'n to Protect Hammersley, Eld, and

Totten Inlets v. Taylor Res., Inc., 299 F.3d 1007,

1016-18 (9th Cir. 2002). Indeed, in Colorado PIRG,

this Court reversed the Tenth Circuit’s ruling that

“radioactive materials” includes all _ radiological

materials where the lower court declined to consider

legislative history indicating a narrow meaning was

intended. 426 U.S. at 9-10. The Court cautioned,

“[w]hen aid to construction of the meaning of words,

as used in the statute, is available, there certainly

can be no ‘rule of law’ which forbids its use, however

clear the words may appear on _ ‘superficial

examination.” Jd. at 10 (quoting United States uv.

Am. Trucking Ass'n, 310 U.S. 534, 543-44 (1940)).

Likewise here, the Sixth Circuit cannot properly

disregard the statutory and historic context that

demonstrates Congress’s intent not to regulate

pesticide use under the CWA. Supra pages 4-6.

Read in the light of that context, the CWA is at least

ambiguous as to whether biological pesticides in use

are “pollutants.” This is particularly true given

Congress’s inclusion of “chemical wastes” but not

“chemicals” or “chemical products” and the likelihood

that Congress gave no thought at all to the existence

of the far less common biological pesticides. App.

83a. Reading all the relevant CWA provisions in

context, as any member of Congress would have read

them in 1972, one cannot conclude that the CWA

unambiguously requires NPDES permitting for

pesticide use — biological or chemical.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Ellen Steen

Counsel of Record

Clifton S. Elgarten

Jessica A. Hall

CROWELL & MORING LLP

1001 Pennsylvania Ave. NW

Washington, DC 20004-2595

(202) 624-2500

November 2009

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

SIXTH CIRCUIT

Nos. 06-4630, 07-3182, 07-3185, 07-3180,

07-3183, 07-3186, 07-3181, 07-3184, 07-3187.

The NATIONAL COTTON COUNCIL OF

AMERICA, et al.,

Plaintiffs-Appellants,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Defendants-Appellees.

April 29, 2008, Argued,

Jan. 7, 2009, Filed

Before: GUY, SUHRHEINRICH, and COLE, Circuit

Judges.

OPINION

COLE, Circuit Judge:

These proceedings involve a final regulation issued

by the Environmental Protection Agency (the “EPA”)

under the Clean Water Act, 33 U.S.C. § 1251 et seq.

The Clean Water Act regulates the discharge of “pol-

lutants” into the nation's waters by, among other

things, requiring entities that emit “pollutants” to

obtain a National Pollutant Discharge Elimination

System (“NPDES”) permit. Jd. §§ 1311(a), 13842. On

November 27, 2007, the EPA issued a Final Rule

concluding that pesticides applied in accordance

with the Federal Insecticide, Fungicide, and Roden-

ticide Act (the “FIFRA”) are exempt from the Clean

Water Act's permitting requirements. See 71 Fed.

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

different groups of Petitioners-one representing en-

vironmental interest groups and the other represent-

ing industry interest groups-oppose the EPA's Final

Rule as exceeding the EPA's interpretive authority.

The EPA defends the Final Rule by arguing that the

terms of the Clean Water Act are ambiguous and

that the Final Rule is a reasonable construction of

the Clean Water Act entitled to deference from this

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

ambiguous. Further, it is a fundamental precept of

this Court that we interpret unambiguous expres-

sions of Congressional will as written. Chevron

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694

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

is not a reasonable interpretation of the Act and

VACATE the Final Rule.

1. BACKGROUND

A. The Regulatory Background

1. The Clean Water Act

Congress enacted the Clean Water Act “to re-

store and maintain the chemical, physical and bio-

logical integrity of the Nation's waters.” Nat'l Wild-

life Fed'n v. Consumers Power Co., 862 F.2d 580, 582

(6th Cir.1988) (quoting 33 U.S.C. § 1251(a)). The

goal of the Clean Water Act is to achieve “water

quality which provides for the protection and propa-

gation of fish, shellfish, and wildlife and provides for

recreation in and on the water.” 33 U.S.C. §

1251(a)(2). Thus, the Act provides that “the dis-

charge of any pollutant by any person shall be un-

lawful.” 7d. § 1311(a). “Pollutant” is a statutorily de-

fined term that includes, at least, “dredged spoil, sol-

id waste, incinerator residue, sewage, garbage, sew-

age sludge, munitions, chemical wastes, biological

materials, radioactive materials, heat, wrecked or

discarded equipment, rock, sand, cellar dirt and in-

dustrial, municipal, and agricultural waste dis-

charged into water.” Jd. § 1362(6). The Supreme

Court has held that this list is not exhaustive and

that “pollutant” should be interpreted broadly. Ra-

panos v, United States, 547 U.S. 715, 724, 126 S.Ct.

2208, 165 L.Ed.2d 159 (2006).

The Clean Water Act prohibits the discharge

of any “pollutant” into navigable waters from any

“point source” unless the EPA issues a permit under

the NPDES permitting program, 33 U.S.C. §§

131l(a), 1842, where a “point source” is “any dis-

cernible, confined, and discrete conveyance ... from

which pollutants are or may be discharged.” Jd. §

1362(14). The permitting program constitutes an ex-

ception to the Clean Water Act's prohibition on pol-

lutant discharges into the Nation's waters. Id. §§

1311(a), 1342; 40 C.F.R. § 122.3. Thus, if a party ob-

tains a permit, the discharge of pollutants in accor-

dance with that permit is not unlawful. Jd.

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

agency that has been approved by the EPA, evalu-

ates the permit application to ensure that the dis-

charge of a pollutant under the proposed circum-

stances will not cause undue harm to the quality of

the water. See 33 U.S.C. § 1342. In addition to grant-

ing permits for specific discharges, the EPA and

state authorities may also grant general permits

that allow for the discharge of a specific pollutant or

type of pollutant across an entire region. /d. For ex-

ample, prior to the EPA's adoption of the Final Rule,

the State of Washington had issued a general permit

to allow for the application of all aquatic pesticides

in the State. See Acquatechnex v. Washingion Dep't

of Ecology, PCHB No. 02-090, 2002 WA ENV LEXIS

87, *2-5 (Pollution Control Hr'gs Bd. Dec. 24, 2002).!

| The State of California's State Water Resources Control

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

all aquatic pesticide discharges, as long as the discharger certi-

fied that alternative options had been evaluated and that any

impact the pesticide application had on the water quality would

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

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

As a result, users of aquatic pesticides in Washing-

ton could discharge those pesticides covered by the

rule without obtaining a permit. These general per-

mits “greatly reduce [the] administrative burden by

authorizing discharges from a category of point

sources within a specified geographic area.” S. Flor-

ida Water Mgmt. Dist. v. Miccosukee Tribe of Indi-

ans, 541 U.S. 95, 108 n. *, 124 S.Ct. 1537, 158

L.Ed.2d 264 (2004) (citing 40 C.F.R. §

122.28(b)(2)(v)). “Once [the] EPA or a state agency

issues such a [general] permit, covered entities, in

some cases, need take no further action to achieve

compliance with the NPDES besides adhering to the

permit conditions.” Jd.

2. The Federal Insecticide, Fun-

gicide, and Rodenticide Act

The EPA also regulates the labeling and sale

of pesticides under the Federal Insecticide, Fungi-

cide, and Rodenticide Act. Under the FIFRA, all pes-

ticides sold in the United States must be registered

with the EPA. See 7 U.S.C. § 136 et seq. The EPA

approves an insecticide for registration only when it

finds that the chemical, “when used in accordance

with widespread and commonly recognized practice

... [,] will not generally cause unreasonably adverse

effects on the environment.” No Spray Coalition uv.

City of New York, 351 F.3d 602, 604-05 (2d Cir.2003)

(quoting 7 U.S.C. § 136a(c)(5)(D)). Under the FIFRA,

the EPA issues a “label” for each registered pesti-

cide, indicating the manner in which it may be used;

the statute makes it unlawful “to use any pesticide

in a manner inconsistent with its labeling.” Jd. (quot-

ing 7 U.S.C. § 136j(a)(2)(6)).

For nearly thirty years prior to the adoption of

the Final Rule, pesticide labels issued under the

FIFRA were required to contain a notice stating that

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

streams, ponds, or public waters unless in accor-

dance with an NPDES permit.” EPA's Policy and

Criteria Notice 2180.1 (1977). Despite amendments

made to the FIFRA's labeling requirements over the

years, pesticide labels have always included a notice

about the necessity of obtaining an NPDES permit.

See EPA's Policy and Criteria Notice 2180.1 (1984);

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

1993); PR Notice 95-1 (May 1, 1995); see also EPA-

738-7-96-007 (Feb.1996), available at http:// www.

epa. gov/ oppsrrd 1/ REDs/ factsheets/ 3095 fact. pdf,

(Pesticide Reregistration notification for 4, 4-

Dimethyloxazolidine) (referring to the labeling re-

quirement described in the PR Notice).

3. The Regulatory Framework

Under the Final Rule

Under the Clean Water Act, pollutants may

only be discharged according to a permit unless they

fit into one of the exceptions listed in the federal

regulations at 40 C.F.R. § 122.3. The Final Rule re-

vises the regulations by adding pesticides to these

exceptions as long as they are used in accordance

with the FIFRA's requirements. 71 Fed. Reg. at

68,485, 68,492. Specifically, the Final Rule states

that pesticides applied consistently with the FIFRA

do not require an NPDES permit in the following

two circumstances:

(1) The application of pesticides directly

to waters of the United States in order to

control pests. Examples of such applica-

tions include applications to control mos-

quito larvae, aquatic weeds, or other

pests that are present in waters of the

United States.

(2) The application of pesticides to control

pests that are present over waters of the

United States, including near such wa-

ters, where a portion of the pesticides will

unavoidably be deposited to waters of the

United States in order to target the pests

effectively; fer example, when insecticides

are aerialiy applied to a forest canopy

where waters of the United States may be

present below the canopy or where pesti-

cides are applied over or near water for

control of adult mosquitoes or other pests.

40 C.F.R. § 122.3(h).

Although the EPA, through its Final Rule,

takes the position that pesticides are not generally

pollutants, it makes an exception for “pesticide re-

siduals,” which “include[ ] excess amounts of pesti-

cide.” 71 Fed. Reg. at 68,487. “Pesticide residuals”

are those portions of the pesticide that “remain in

the water after the application and its intended pur-

pose (elimination of targeted pests) have been com-

pleted...."” Id. The EPA concedes that pesticide resi-

due (unlike pesticides generally) is a pollutant under

the Clean Water Act because it is “waste[ ] of the

pesticide application.” Jd. Nonetheless, the EPA con-

tends that pesticide residue is not subject to the

NPDES permitting program because “at the time of

discharge to a water of the United States, the mate-

rial in the discharge must be both a pollutant, and

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

residue cannot be subject to the permitting program

because by the time it becomes a pollutant it is no

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

is at play, the EPA reasons, pesticide residue is a

“nonpoint source pollutant” and therefore not subject

to the permitting requirements. /d.

B. Procedural Background

Timely petitions for review of the Final Rule

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

Sixth, Seventh, Eighth, Ninth, Tenth, and D.C. Cir-

cuits by either the “Industry Petitioners”? or the

“Environmental Petitioners.”* The petitions for re-

view were consolidated in this circuit by an order of

the Judicial Panel on Multidistrict Litigation, under

2 Agribusiness Association of lowa, BASF Corporation,

Bayer CropScience LP, CropLife America, Delta Council, Eldon

C. Stutsman, Inc., FMC Corporation, Illinois Fertilizer &

Chemical Association, The National Cotton Council of America,

Responsible Industry for a Sound Environment, Southern Crop

Production Association, and Syngenta Crop Protection, Inc.,

LP.

} Baykeeper, Californians for Alternatives to Toxics, Cali-

fornia Sportfishing Protection Alliance, National Center for

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

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

Inc., Soundkeeper, Inc., Environmental Maine, and Toxics Ac-

tion Center.

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

dustry Intervenors” filed a motion to intervene in

support of the Final Rule.®

Environmentai Petitioners filed a timely mo-

tion to dismiss the petitions because of lack of sub-

ject matter jurisdiction or, alternatively, to transfer

the cases to the Ninth Circuit. Industry Petitioners,

the EPA, and Industry Intervenors opposed this mo-

tion. The Environmental Petitioners have also filed a

complaint challenging the Final Rule in the North-

ern District of California in order to preserve review

of the Final Rule in the event this Court grants their

motion to dismiss. On July 24, 2007, we denied the

motion to transfer and deferred the decision on the

question of subject matter jurisdiction.

IT. JURISDICTION

Environmental Petitioners contend that this

dispute should be dismissed for lack of subject mat-

ter jurisdiction, arguing that original review of the

Final Rule by the courts of appeals is not covered by

the grant of original jurisdiction set forth in the

Clean Water Act, 33 U.S.C. § 1369(b)(1). Environ-

mental! Petitioners are correct that “Congress did not

intend court of appeals jurisdiction over all EPA ac-

tions taken pursuant to the Act.” Lake Cumberland

4 Industry Intervenors include each of the Industry Pet1-

tioners listed above as well as American Farm Burcau Federa-

tion and American Forest & Paper Association.

5 American Mosquito Association submitted a brief as

amicus curiae in support of the Final Rule.

10a

Trust, Inc. v. EPA, 954 F.2d 1218, 1222 (6th

Cir.1992) (quoting Boise Cascade Corp. v. EPA, 942

F.2d 1427, 1431 (9th Cir.1991)). However, we con-

clude that, at a minimum, § 1369(b)(1)(F) encom-

passes the action before us.

Under 33 U.S.C. § 1869(b)(1)(F), a party may

challenge EPA actions “issuing or denying any per-

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

priate circuit court. The Clean Water Act's permit-

ting program is set forth in § 1342. The jurisdictional

grant of § 1369(b)(1)(F) authorizes the courts of ap-

peals “to review the regulations governing the issu-

ance of permits under section 402, 33 U.S.C. § 1342,

as well as the issuance or denial of a particular per-

mit.” Am. Mining Cong. v. EPA, 965 F.2d 759, 763

(9th Cir.1992). Thus, in Natural Resources Defense

Council, Inc. v. EPA, 966 F.2d 1292, 1296-97 (9th

Cir.1992), the court held that it had jurisdiction to

review an EPA rule exempting uncontaminated

storm-water discharge from the permitting regula-

tions. The Natural Resources court concluded that it

had “the power to review rules that regulate the un-

derlying permit procedures.” Jd. at 1297 (citing

NRDC v. EPA, 656 F.2d 768, 775 (D.C.Cir.1981) and

E.I. du Pont de Nemours & Co. v. Train, 430 U.S.

112, 136, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977)). The

Final Rule before us today likewise regulates the

permitting procedures, and we therefore conclude

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

lla

III DISCUSSION

A. Standard of Review

Our review of agency decisions has two com-

ponents. First, we determine whether the agency's

chosen action complies with Chevron, 467 U.S. at

842-45, 104 S.Ct. 2778; see United States v. Mead

Corp., 533 U.S. 218, 227, 121 S.Ct. 2164, 150

L.Ed.2d 292 (2001); Riverkeeper, Inc. v. EPA

(“Riverkeeper IT’), 475 F.3d 838, 95 (2d Cir.2007).

When conducting Chevron review of the Final Rule,

we “examine the [Final Rule] against the statute

that contains the EPA's charge.” Riverkeeper, Inc. v.

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

Cir.2004). Here, we must determine whether “the

intent of Congress is clear as to the precise question

at issue.” NationsBank of N.C., N.A. v. Variable An-

nuity Life Ins. Co., 513 U.S. 251, 257, 115 S.Ct. 810,

130 L.Ed.2d 740 (1995); Chevron, 467 U.S. at 842,

104 S.Ct. 2778. “In making [this| threshold determi-

nation under Chevron, a reviewing court should not

confine itself to examining a particular statutory

provision in isolation. Rather, the meaning-or ambi-

guity-of certain words or phrases may only become

evident when placed in context.” Nat'l Ass'n of Home

Builders v. Defenders of Wildlife, 551 U.S. 644, 127

S.Ct. 2518, 2534, 168 L.Ed.2d 467 (2007). If the in-

tent of Congress is clear, “that is the end of the mat-

ter; for the court, as well as the agency, must give

effect to the unambiguously expressed intent of Con-

gress.” Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778.

If, and only if, the statute is silent or ambiguous re-

garding the question at issue, we then move to step

two of Chevron review and ask whether “the agency's

12a

answer is based on a permissible construction of the

statute.” Jd. at 843, 104 S.Ct. 2778. If the agency's

“interpretation is reasonable, we must defer to its

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

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

The second part of our review would require

us to consider the Final Rule under the standards

set forth by the Administrative Procedure Act sec-

tion 10(2)(e), 5 U.S.C. § 706(2) (the “APA”), under

which we are required to “hold unlawful and set

aside agency action. findings, and conclusions” that,

among other criteria, are found to be “arbitrary, ca-

pricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A). Agency

action is arbitrary and capricious where

the agency has relied on factors that

Congress has not intended it to consider,

entirely failed to consider an important

aspect of the problem, offered an expla-

nation for its decision that runs counter

to the evidence before the agency, or is so

implausible that it could not be ascribed

to a difference in view or the product of

agency experience.

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

Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d

443 (1983); see also Citizens Coal Council, 447 F.3d

at 890. When conducting this form of review, we en-

sure that the agency “examine|[d] the relevant data

and articulate[d] a satisfactory explanation for its

action including a rational connection between the

facts and the choice made.” Motor Vehicle Mfrs., 463

l3a

U.S. at 43, 103 S.Ct. 2856. “The court is required to

make a ‘searching and careful review’ in its assess-

ment of the agency action, but ‘the ultimate stan-

dard of review is a narrow one.’ ” Citizens Coal

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

serve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416,

915S.Ct. 814, 28 L.Ed.2d 136 (1971)).

B. The Parties' Positions

:. The Petitioners

Environmental Petitioners argue: (1) that the

EPA exceeded its authority under the Clean Water

Act in issuing a rule that excludes pesticides from

the definition of “pollutant” under 33 U.S.C. §

1362(6); (2) that the EPA exceeded its authority un-

der the Clean Water Act when it determined that,

while pesticides are discharged by point sources, the

residue of these pesticides is nonetheless a “nonpoint

source pollutant”; and (3) that the EPA may not ex-

empt FIFRA-compliant applications of pesticides

from the requirements of the Clean Water Act. In-

dustry Petitioners, on the other hand, argue that the

Final Rule is arbitrary and capricious because it

treats pesticides applied in violation of the FIFRA as

pollutants, while it treats the very same pesticides

used in compliance with the FIFRA as _ non-

pollutants. In other words, the Industry Petitioners

complain that whether something constitutes a pol-

lutant should not hinge upon compliance with the

FIFRA.

l4a

2. The EPA

As described above, the EPA's Final Rule ex-

empts from the NPDES permitting program pesti-

cides that are applied directly to the Nation's waters,

or near such waters, in order to control pests. 40

C.F.R. § 122.3(h). The EPA says that its Final Rule

exempts both pesticides generally and “pesticide re-

sidue,” which includes “excess pesticide.” 71 Fed.

Reg. at 68,487.

The EPA provides two reasons that its Final

Rule is reasonable. First, the EPA argues that the

Clean Water Act as it applies to pesticides is am-

biguous. The EPA contends that it reasonably de-

termined that pesticides applied according to the

FIFRA requirements are not pollutants and there-

fore are not subject to the NPDES permitting pro-

gram. The EPA reasons that “Congress defined the

term ‘pollutant’ in the Clean Water Act to mean one

of 16 specific items.” (EPA Br. at 22.) Of these six-

teen, the EPA states that pesticides, which are ei-

ther chemical or biological in nature, may only be

considered to be “chemical wastes” or “biological ma-

terials.” 71 Fed. Reg. at 68,486. The EPA argues that

pesticides are not “chemical wastes” in the ordinary

dictionary definition of the word “waste,” because

waste is that which is “eliminated or discarded as no

longer useful or required after the completion of a

process.” Id. (quoting The New Oxford American Dic-

tionary 1905 (Elizabeth J. Jewell & Frank Abate

eds., 2001)). Rather than being wastes, the EPA rea-

sons that pesticides applied according to the FIFRA's

labeling requirements “are products that the EPA

has evaluated and registered for the purpose of con-

Lda

trolling target organisms, and are designed, pur-

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

The EPA next concludes that pesticides applied in

accordance with the FIFRA are not “biological mate-

rials” because to find otherwise would lead to the

anomalous result “that biological pesticides are pol-

lutants, while chemical pesticides used in the same

circumstances are not.” Jd.

The EPA's second argument attempts to jus-

tify its Final Rule as applied to pesticide residue. In

contrast to pesticides generally, which the EPA con-

tends are not pollutants, the EPA concedes that pes-

ticide residue and excess pesticide are pollutants

within the meaning of the Clean Water Act because

“they are wastes of the pesticide application.” 71

Fed. Reg. at 68,487. The EPA also concedes that pes-

ticides are discharged from a point source. Id. at

68,487-88. Nonetheless, the EPA concludes that no

permit is required for pesticide applications that re-

sult in excess or residue pesticide because it inter-

prets the Clean Water Act as requiring permits only

for discharges that are “both a pollutant, and from a

point source” at the time of discharge. Jd. at 68,487.

C. Analysis

i. Are Pesticides Unambigu-

ously “Poliutants” Within the

Meaning of the Act?

The first question under Chevron is whether

the Clean Water Act unambiguously includes pesti-

cides within its definition of “pollutant.” Under this

first step, this Court determines “whether Congress

16a

has directly spoken to the precise question at issue.”

467 U.S. at 842, 104 S.Ct. 2778. This is determined

by “employing traditional tools of statutory construc-

tion.” Jd. The meaning of a statute “is determined by

reference to the language itself, the specific context

in which that language is used, and the broader con-

text of the statute as a whole.” Robinson v. Shell Oil

Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d

808 (1997); see also Dole v. United Steelworkers of

Am., 494 U.S. 26, 35, 110 S.Ct. 929, 108 L.Ed.2d 23

(1990) (“Our ‘starting point is the language of the

statute.’ ... but ‘in expounding a statute, we are not

guided by a single sentence or member of a sentence,

but look to the provisions of the whole law, and to its

object and policy.’ ”) (citations omitted). If Congress's

intent is clear from the statutory language, then

“that intent must be given effect.” Chevron, 467 U.S.

at 842-43, 104 S.Ct. 2778.

As noted above, the Clean Water Act defines

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

residuc, sewage, garbage, sewage sludge, munitions,

chemical wastes, biological materials, radioactive

materials, heat, wrecked or discarded equipment,

rock, sand, cellar dirt and industrial, municipal, and

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

§ 1362(6). This Court has previously concluded that

the “broad generic terms” included in the definition

of “pollutant” demonstrate Congress's intent to cap-

ture more than just the items expressly enumerated.

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

Cir.1977) (concluding that the Clean Water Act cov-

ers, at a minimum, those pollutants covered under

the Refuse Act, which applies to “all foreign sub-

stances” not explicitly exempted from coverage); see

17a

also, e.g., Cedar Point Oil Co., 73 F.3d at 565 (“(T]he

breadth of many of the items in the list of ‘pollutants’

tends to eviscerate any restrictive effect.”); No Spray

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

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

1972 U.S.C.C.A.N. 3668, 3742). However, we need

not consider the term's breadth today. Rather, we

find the plain language of “chemical waste” and “bio-

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

to pesticides. This Court must, therefore, give effect

to the Congress's expressed intent. See Chevron, 467

U.S. at 842-43, 104 S.Ct. 2778.

a. Chemical Waste

Generally, a court should give a word in a sta-

tute its “ordinary, contemporary, common meaning,

absent an indication Congress intended [it] to bear

some different import.” Grand Traverse Band of Ot-

tawa & Chippewa Indians v. Office of U.S. Attorney,

369 F.3d 960, 967 (6th Cir.2004) (quoting Williams

v. Taylor, 529 U.S. 420, 431-32, 120 S.Ct. 1479, 146

L.Ed.2d 435 (2000)). The EPA refers the Court to

The New Oxford American Dictionary (Jewell & Ab-

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

discarded as no longer useful or required after the

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

tioners point the Court to Black's Law Dictionary

(8th ed.2004), which defines waste as “[rJefuse or su-

perfluous material, esp. that after a manufacturing

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

Ninth Circuit has accepted the American Heritage

Dictionary's definition of waste as “any uscless or

worthless byproduct of a process or the like; refuse

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

18a

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

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

(2005).

Under any of these definitions of “waste,”

“chemical waste” for the purposes of the Clear. Water

Act would include “discarded” chemicals, “superflu-

ous” chemicals, or “refuse or excess” chemicals. As

such, under a plain-meaning analysis of the term, we

cannot conclude that all chemical pesticides require

NPDES permits. Rather, like our sister circuit in

Fairhurst, we conclude that: so long as the chemical

pesticide “is intentionally applied to the water [to

perform a particular useful purpose] and leaves no

excess portions after performing its intended pur-

pose[ ] it is not a ‘chemical waste,’ ” 422 F.3d at

1149, and does not require an NPDES permit. Jd.

On the other hand, as Environmental Peti-

tioners argue and the EPA concedes, excess pesticide

and pesticide residue meet the common definition of

waste. To this extent, the EPA's Final Rule is in line

with the expressed intent of Congress, as the Rule

defines these pesticide residues as pollutants “be-

cause they are wastes of the pesticide application.”

71 Fed. Reg. at 68,487. The EPA aptly states:

[P]esticides applied to land but later con-

tained in a waste stream, including

storm water regulated under the Clean

Water Act, could trigger the requirement

of obtaining an NPDES permit.... In ad-

dition, if there are residual materials re-

sulting from pesticides that remain in

the water after the application and its

19a

intended purpose has been completed,

the residual materials are pollutants be-

cause they are substances that are no

longer useful or required after the com-

pletion of a process.

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

Therefore, at least two easily defined sets of

circumstances arise whereby chemical pesticides

qualify as pollutants under the Clean Water Act. In

the first circumstance, a chemical pesticide is ini-

tially applied to land or dispersed in the air-these

pesticides are sometimes referred to as either “ter-

restrial pesticides” or “aerial pesticides” and include

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

point following application, excess pesticide or resid-

ual pesticide finds its way into the navigable waters

of the United States. Pesticides applied in this way

and later affecting the water are necessarily “dis-

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

chemical pesticide residuals meet the Clean Water

Act's definition of “chemical waste.”

In the second circumstance, a chemical pesti-

cide is applied directly and purposefully to navigable

waters to serve a beneficial purpose-such pesticides

are often referred to as “aqueous” or “aquatic” pesti-

cides. As contemplated by the EPA, if residual aqua-

tic pesticide “remain[s} in the water after the appli-

cation and [the pesticide's] intended purpose has

been completed,” then the residue would likewise

qualify as a “chemical waste.” (EPA Br. 29-30.) As

such, these chemical wastes would unambiguously

fall within the ambit of the Clean Water Act.

20a

This second scenario, of course, leads to the

inevitable quandary that both non-waste aqueous

pesticide and pesticide residual are applied to water

at the same moment, which then gives rise to the

question of how the EPA can regulate and permit the

residual. However, this problem is more theoretical

than practical. In reality, whether or not a particular

chemical pesticide needs to be regulated can be eas-

ily answered by both the EPA's and industry's ex-

perience with that pesticide. If, as was the case in

Fairhurst, a chemical such as antimycin leaves no

excess portions after performing its intended pur-

pose, then that chemical's use need not be regulated.

See Fairhurst, 422 F.3d at 1149. If, on the other

hand, a chemical pesticide is known to have lasting

effects beyond the pesticide's intended object, then

its use must be regulated under the Clean Water

Act. See also Headwaters, Inc. v. Talent Irrigation

Dist., 243 F.3d 526, 532-33 (9th Cir. 2001).

b. Biological Materials

Continuing our review under Chevron, we

must examine the “ordinary, contemporary, [and|

common meaning” of “biological materials.” Grand

Traverse Band, 369 F.3d at 967. Environmental Pe-

titioners point out that Webster's Third New Interna-

tional Dictionary (Gove ed.1993) defines “material”

as “of, relating to, or consisting of matter” and “the

basic matter from which the whole or the great part

of something is made.” Jd. at 1392. The Oxford Eng-

lish Dictionary provides that “material” is “that

which constitutes the substance of a thing (physical

or nonphysical); a physical substance; a material

thing.” OED Online, available at http:// dictionary.

Z2la

coed. com/ cgi/ entry/ 00303279? que ry_ type= word &

queryword= material& firs t= 1& max_ to_ show=

10& sort_ type= alpha& result_ place = 1& search_

id = Vo PI- c Vw Rj A- 12823& hilite = 00303279. The

plain, unambiguous nature of this language compels

this Court to find that matter of a biological nature,

such as biological pesticides, qualifies as a biological

material and falls under the Clean Water Act if it is

“discharged into water.” 33 U.S.C. § 1362(6).

The EPA points to Ninth Circuit case law that

holds that “mussel shells and mussel byproduct are

not pollutants” under the Clean Water Act. Ass'n to

Protect Hammersley, Eld & Totten Inlets v. Taylor,

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

court found the Clean Water Act to be “ambiguous

on whether ‘biological materials’ means all biological

matter regardless of quantum and nature.” Jd. While

that case is distinguishable, we choose a more lim-

ited analysis.® We see our obligation not as defining

the outermost bounds of “biological materials,” but

rather simply as deciding whether biological pesti-

cides fit into the ordinary meaning of “biological ma-

terials.”

The term “biological materials” cannot be read

to exclude biological pesticides or their residuals.

The EPA's Final Rule treats biological] pesticides no

6 The Hammersley court based its conclusion on the fact

that shells and shell byproduct of shellfish-farming facilities

are the result of natural biological processes, not the result of a

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

1016-17.

22a

differently from chemical pesticides, exempting both

from NPDES permitting requirements in certain cir-

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

interpretation to be contrary to the plain meaning of

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

purposefully included the term “biological materi-

als,” rather than a more limited term such as “bio-

logical wastes.” Congress could easily have drafted

the list of pollutants in the Clean Water Act to in-

clude “chemical wastes” and “biological wastes.” But,

here, the word “waste” does not accompany “biologi-

cal materials.” Thus, if we are to give meaning to the

word “waste” in “chemical waste,” we must recognize

Congress's intent to treat biological and chemical

pesticides differently.

This interpretation is consistent with the

precedent of this Court and others. In National

Wildlife Federation v. Consumers Power Co., 862

F.2d 580 (6th Cir.1988), we determined that

“(mJillions of pounds of live fish, dead fish and fish

remains annually discharged in Lake Michigan by

[a] facility are pollutants within the meaning of the

[Clean Water Act], since they are ‘biological materi-

als.’ ” Likewise, the District Court of Maine deter-

mined that “salmon feces and urine that exit the net

pens and enter the waters are pollutants as they

constitute ‘biological materials' or ‘agricultural

wastes. ” United States Pub. Interest Research

Group v. Atl. Salmon of Maine, 215 F.Supp.2d 239,

247 (D.Me.2002) (citing Higbee v. Starr, 598 F.Supp.

323, 330-31 (D.Ark.1984) aff'd, 782 F.2d 1048 (8th

Cir.1985)). Biological pesticides similarly must be

considered “biological materials.” Biological pesti-

cides consist of artificial concentrations of viruses,

23a

bacteria, fungi, plant materials, and/or other biologi-

cal materials. See Pesticides: Glossary, U.S. EPA,

available at http:// www. epa. gov/ pesticides/ glos-

sary. Congress defined “pollution” as “the man-made

or man-induced alteration of the chemical, physical,

biological, and radiological integrity of water.” 33

U.S.C. § 1862(19). Adding biological pesticides to wa-

ter undeniably alters its biological integrity. There-

fore, we find biological pesticides to be “biological

materials” under the Clean Water Act.

S. Are Chemical Pesticide Re-

siduals Added to the Water by

“Point Sources?”’”

The EPA further defends its Final Rule by ar-

guing that excess pesticide and residue pesticide are

not discharged from a “point source.” In other words,

though excess and residue pesticides have exactly

the same chemical composition and are discharged

from the same point source at exactly the same time

as the original pesticide, and though excess and re-

sidue pesticides would not enter the Nation's water-

ways but for the discharge of the original pesticide,

the EPA concludes that excess and residue pesticides

are not discharged from a “point source” because at

the moment of discharge there is only pesticide. This

This analysis is not necessary for biological pesticides

because, as discussed above, both biological pesticides and their

residuals are pollutants under the Clean Water Act. Because

biological pesticides are discharged from a “point source” they

must be regulated under the Act.

Q4a

is so, according to the EPA, because excess and resi-

due pesticides do not exist until after the discharge

is complete, and therefore “should be treated as a

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

The Clean Water Act defines “point source” as

“any discernible, confined, and discrete conveyance,”

including a variety of mechanisms such as “con-

tainer,” “rolling stock,” or “vessel or other floating

eraft.” 33 U.S.C. § 1362(14). The EPA and the courts

agree that pesticides are applied by point sources.

See 71 Fed. Reg. at 65,847; League of Wilderness De-

fenders vu. Forsgren, 309 F.3d 1181, 1185 (9th

Cir.2002); Headwaters, 243 F.3d at 528. The EPA

argues that, at the time of discharge, the pesticide is

a nonpollutant, and the excess pesticide and pesti-

cide residues are not created until later, presumably

after they are already in the water. Therefore, ac-

cording to the EPA, pesticides at the time of dis-

charge do not require permits because they are not

yet excess pesticides or residue pesticides. But there

is no requirement that the discharged chemical, or

other substance, immediately cause harm to be con-

sidered as coming from a “point source.” Rather, the

requirement is that the discharge come from a “dis-

cernible, confined, and discrete conveyance,” 33

U.S.C. § 13862(14), which is the case for pesticide ap-

plications.

The EPA offers no direct support for its asser-

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

the time of discharge if it is to be considered as dis-

charged from a “point source.” This omission of au-

thority is understandable, as none exists. The Clean

Water Act does not create such a requirement. In-

25a

stead, it defines “discharge of a pollutant” as “any

addition of any pollutant to navigable waters from

any point source.” 33 U.S.C. § 1362(12). The EPA's

attempt at temporally tying the “addition” (or “dis-

charge’) of the pollutant to the “point source” does

not follow the plain language of the Clean Water Act.

Injecting a temporal requirement to the “discharge of

a pollutant” is not only unsupported by the Act, but

it is also contrary to the purpose of the permitting

program, which is “to prevent harmful discharges

into the Nation's waters.” Defenders of Wildlife, 127

S.Ct. at 2525. If the EPA's interpretation were al-

lowed to stand, discharges that are innocuous at the

time they are made but extremely harmful at a later

point would not be subject to the permitting pro-

gram. Further, the EPA's interpretation ignores the

directive given to it by Congress in the Clean Water

Act, which is to protect water quality. As the EPA

itself recognizes, “Congress generally intended that

pollutants be controlled at the source whenever pos-

sible.” 73 Fed. Reg. at 33,702 (citing S.Rep. No. 92-

414, p. 77 (1972)). Here, it is certainly possible for

pesticide residue to be controlled at its source be-

cause the discharge of the pesticide introduces such

residue into the water.

The EPA's newly asserted temporal element

also runs contrary to its own recent interpretation of

the Clean Water Act's term “addition.” See 73 Fed

Reg. 33,697 (June 13, 2008). The EPA determined

that transfers of water from one body of water to an-

other do not constitute the “addition” of a poilutant

to the new body of water, and in doing so clarified its

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

33,697. The EPA explained:

26a

Given the broad definition of “pollutant,”

transferred (and receiving) water will

always contain intrinsic pollutants, but

the pollutants in transferred water are

already in “the waters of the United

States” before, during, and after the wa-

ter transfer. Thus, there is no “addition”;

nothing is being added “to” “the waters of

the United States” by virtue of the water

transfer, because the pollutant at issue

is already part of “the waters of the

United States” to begin with.

As noted above, EPA's longstanding posi-

tion is that an NPDES pollutant is “add-

ed” when it is introduced into a water

from the “outside world” by a_ point

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

Id. at 33,701. Given the EPA's understanding of “ad-

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

under the meaning of the Clean Water Act, pesticide

residue or excess pesticide-even if treated as distinct

from pesticide-is a pollutant discharged from a point

source because the pollutant is “introduced into a

water from the ‘outside world’ by” the pesticide ap-

plicator from a “point source.” See id. This interpre-

tation coincides with the method of determining

whether a discharge is from a “point source” that the

Supreme Court recently cited with approval: “For an

addition of pollutants to be from a point source, the

relevant inquiry is whether-but for the point source-

the pollutants would have been added to the receiv-

27a

ing body of water.” Miccosukee, 541 U.S. at 103, 124

S.Ct. 1537 (quoting Miccosukee Tribe of Indians v.

Florida Water Mgmt. Dist., 280 F.3d 1364, 1368

(11th Cir. 2002)). It is clear that but for the applica-

tion of the pesticide, the pesticide residue and excess

pesticide would not be added to the water; therefore,

the pesticide residue and excess pesticide are from a

“point source.”

3. May the Final Rule Stand?

For all of these reasons, we conclude that the

statutory text of the Clean Water Act forecloses the

EPA's Final Rule. The EPA properly argues that ex-

cess chemical pesticides and chemical pesticide resi-

dues, rather than all chemical pesticides, are pollut-

ants. However, the Final Rule does not account for

the differences between chemical and biologial pes-

ticides under the language of the Clean Water Act.

Further, because the Act provides that residual and

excess chemical pesticides are added to the water by

a “point source” there is no room for the EPA's ar-

gument that residual and excess pesticides do not

require an NPDES permit. The “point source” from

which the residue originates is easily discernable

and necessarily must “be controlled at the source.”

See 73 Fed. Reg. at 33,702. Given all of the above in

combination with the EPA's interpretation that

“[p]oint sources need only convey pollutants into na-

vigable waters to be subject to the Act,” id. at 33,703,

dischargers of pesticide pollutants are subject to the

NDPES permitting program in the Clean Water Act.

As such, the EPA's Final Rule cannot stand. Because

the Clean Water Act's text bars the Final Rule we

make no determination regarding the validity of the

28a

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

analyze the relationship between the Clean Water

Act and the FIFRA.

CONCLUSION

For the foregoing reasons, Environmental Petition

ers' petitions are GRANTED in part and DENIED

in part, and Industry Petitioners’ petitions are

DENIED in whole. We VACATE the Final Rule

29a

APPENDIX B

UNITED STATES COURT OF APPEALS

SIXTH CIRCUIT

Nos. 06-4630, 07-3182, 07-3185, 07-3180,

07-3183, 07-3186, 07-3181, 07-3184, 07-3187.

The NATIONAL COTTON COUNCIL OF

AMERICA, et al.,

Plaintiffs-Appellants,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Defendants-Appellees.

FILED

AUG 3 2009

LEONARD GREEN, CLERK

Before: GUY, SUHRHEINRICH, and COLE, Circuit

Judges.

30a

The court having received a petition for re-

hearing en banc, and the petition having been circu-

lated not only to the original panel members but also

to all other active judges on this court, and no judge

of this court having requested a vote on the sugges-

tion for a rehearing en banc, the petition for rehear

ing has been referred to the original panel.

The panel has further reviewed the petition

for rehearing and concludes that the issues raised in

the petition were fully considered upon the original

submission and decision of the cases. Accordingly,

the petition is denied.

ENTERED BY ORDER OF THE COURT

s/ Leonard Green

Leonard Green

Clerk

sla

APPENDIX C

CLEAN WATER ACT PROVISIONS

Clean Water Act § 101(a)(1), (d); 33 U.S.C. §§

1251(a)(1), (d)

§ 1251. Congressional declaration of goals and policy

(a) Restoration and maintenance of chemi-

cal, physical and biological integrity of Nation's wa-

ters; national goals for achievement of objective

‘The objective of this chapter is to restore and

maintain the chemical, physical, and biological in-

tegrity of the Nation's waters. In order to achieve

this objective it is hereby declared that, consistent

with the provisions of this chapter —

(1) it is the national goal that the dis-

charge of pollutants into the navigable wa-

ters be eliminated by 1985;

A A 7

(d) Administrator of Environmental Pro-

tection Agency to administer chapter

Except as otherwise expressly provided in this

chapter, the Administrator of the Environmental

Protection Agency (hereinafter in this chapter called

“Administrator’) shall administer this chapter.

32a

Clean Water Act §§ 104(1)(1), (2), and (p); 33

U.S.C. §§ 1254(1)(1), (2), and (p)

§ 1254. Research, investigations, training, and in-

formation

(1) Collection and dissemination of scien-

tific knowledge on effects and control of pesticides in

water

(1) The Administrator shall, after consulta-

tion with appropriate local, State, and Fed-

eral agencies, public and private organiza-

tions, and interested individuals, as soon as

practicable but not later than January 1,

1973, develop and issue to the States for the

purpose of carrying out this chapter the lat-

est scientific knowledge available in indicat-

ing the kind and extent of effects on health

and welfare which may be expected from the

presence of pesticides in the water in vary-

ing quantities. He shall revise and add to

such information whenever necessary to re-

flect developing scientific knowledge.

(2) The President shall, in consultation with

appropriate local, State, and Federal agen-

cies, public and private organizations, and

interested individuals, conduct studies and

investigations of methods to contro! the re-

lease of pesticides into the environment

which study shall include examination of the

persistency of pesticides in the water envi-

ronment and alternatives thereto. The Pres-

ident shall submit reports, from time te

time, on such investigations to Congress to-

33a

gether with his recommendations for any

necessary legislation.

* * *

(p) Agricultural pollution

In carrying out the provisions of subsection (a)

of this section the Administrator shall, in coopera-

tion with the Secretary of Agriculture, other Federal

agencies, and the States, carry out a comprehensive

study and research program to determine new and

improved methods and the better application of ex-

isting methods of preventing, reducing, and elimi-

nating pollution from agriculture, including the le-

gal, economic, and other implications of the use of

such methods.

Clean Water Act § 208(b); 33 U.S.C. § 1288(b)

§ 1288. Areawide waste treatment management

(b) Planning process

(1) (A) Not later than one year after

the date of designation of any organization

under subsection (a) of this section such or-

ganization shall have in operation a continu-

ing areawide waste treatment management

planning process consistent with section 1281

of this title. Plans prepared in accordance

with this process shall contain alternatives for

waste treatment management, and be appli-

cable to all wastes generated within the area

involved. The initial plan prepared in accor-

dance with such process shall be certified by

34a

the Governor and submitted to the Adminis-

trator not later than two years after the plan-

ning process is 1n operation.

(B) For any agency designated after

1975 under subsection (a) of this section and

for all portions of a State for which the State

is required to act as the planning agency in

accordance with subsection (a)(6) of this sec-

tion, the initial plan prepared in accordance

with such process shall be certified by the

Governor and submitted to the Administrator

not later than three years after the receipt of

the initial grant award euthorized under sub-

section (f) of this section.

(2) Any plan prepared under such

process shall include, but not be limited to--

(A) the identification of treatment

works necessary to meet the anticipated mu-

nicipal and industrial waste treatment needs

of the areca over a twenty-year period, annu-

ally updated (including an analysis of alterna-

tive waste treatment systems), including any

requirements for the acquisition of land for

treatment purposes; the necessary waste wa-

ter collection and urban storm water runoff

systems; and a program to provide the neces-

sary financial arrangements for the develop-

ment of such treatment works, and an identi-

fication of open space and recreation opportu-

nities that can be expected to result from im-

proved water quality, including consideration

of potential use of lands associated with

treatment works and increased access to wa-

35a

ter-based recreation:

(B) the establishment of construction

priorities for such treatment works and time

schedules for the initiation and completion of

all treatment works;

program to--

(i) implement the

waste treatment management require-

ments of section 1281(c) of this title,

(i1) regulate the _ loca-

tion, modification, and construction of

any facilities within such area which

may result in any discharge in such

area, and

(iii) assure that any in-

dustrial or commercial wastes dis-

charged into any treatment works in

such area meet applicable pretreatment

requirements;

(D) the identification of those agen-

cles necessary to construct, operate, and

maintain all facilities required by the plan

and otherwise to carry out the plan;

(E) the identification of the mcasures nec-

essary to carry out the plan (including fi-

nancing), the period of time névessary to

carry out the plan, the costs of carrying out

the plan withir such time, and the economic,

36a

social, and environmental impact of carrying

out the plan within such time;

(F) a process to (i) identify, if appropriate,

agriculturally and _ silviculturally related

nonpoint sources of pollution, including re-

turn flows from irrigated agriculture, and

their cumulative effects, runoff from manure

disposal areas, and from land used for live-

stock and crop production, and (ii) set forth

procedures and methods (including land use

requirements) to control to the extent feasi-

ble such sources;

(G) a process to (i) identify, if appropriate,

mine-related sources of pollution including

new, current, and abandoned surface and

underground mine runoff, and (11) set forth

procedures and methods (including land use

requirements) to control to the extent feasi-

ble such sources;

(H) a process to (i) identify construction ac-

tivity related sources of pollution, and (11) set

forth procedures and methods (including

land use requirements) to control to the ex-

tent feasible such sources;

(1) a process to (i) identify, if appropriate,

salt water intrusion into rivers, lakes, and

estuaries resulting from reduction of fresh

water flow from any cause, including irriga-

tion, obstruction, ground water extraction,

and diversion, and (ii) set forth procedures

and methods to control such intrusion to the

extent feasible where such procedures and

37a

methods are otherwise a part of the waste

treatment management plan;

(J) a process to control the disposition of all

residual waste generated in such area which

could affect water quality; and

(K) a process to control the disposal of pol-

lutants on land or in subsurface excavations

within such area to protect ground and sur-

face water quality.

(3) Areawide waste treatment manage-

ment plans shall be certified annually by the Gover-

nor or his designee (or Governors or their designees,

where more than one State is involved) as being con-

sistent with applicable basin plans and such are-

awide waste treatment management plans shall be

submitted to the Administrator for his approval.

(4) (A) Whenever the Governor of any State

determines (and notifies the Administrator) that

consistency with a statewide regulatory program

under section 1313 of this title so requires, the re-

quirements of clauses (F) through (K) of paragraph

(2) of this subsection shall be developed and submit-

ted by the Governor to the Administrator for ap-

proval for application to a class or category of activ-

ity throughout such State.

(B) <Any program submitted under

subparagraph (A) of this paragraph which,

in whole or in part, is to control the dis-

charge or other placement of dredged or fill

material into the navigable waters shall in-

clude the following:

38a

(i) A consultation process which in-

cludes the State agency with primary

jurisdiction over fish and wildlife re-

sources.

(ii) A process to identify and manage

the discharge or other placement of

dredged or fill material which adversely

affects navigable waters, which shall

complement and be coordinated with a

State program under section 1344 of

this title conducted pursuant to this

chapter.

(iii) A process to assure that any ac-

tivity conducted pursuant to a best

management practice will comply with

the guidelines established under section

1344(b)(1) of this title, and sections

1317 and 1343 of this title.

(iv) A process to assure that any ac-

tivity conducted pursuant to a best

management practice can be termi-

nated or modified for cause including,

but not limited to, the following:

(1) violation of any condition

of the best management practice;

(iT) change in any activity that

requires either a temporary or

permanent reduction or elimina-

tion of the discharge pursuant to

the best management practice.

39a

(v) A process to assure continued co-

ordination with Federal and Federal-

State water-related planning and re-

viewing processes, including the Na-

tional Wetlands Inventory.

proval from the Administrator of a statewide

regulatory program which meets the re-

quirements of subparagraph (B) of this pa-

ragraph and if such State is administering a

permit program under section 1344 of this

title, no person shall be required to obtain

an individual permit pursuant to such sec-

tion, or to comply with a general permit is-

sued pursuant to such section, with respect

to any appropriate activity within such State

for which a best management practice has

been approved by the Administrator under

the program approved by the Administrator

pursuant to this paragraph.

(D) (i) Whenever the Administrator de-

termines after public hearing that a State is

not administering a program approved un-

der this section in accordance with the re-

quirements of this section, the Administra-

tor shall so notify the State, and if appropri-

ate corrective action is not taken within a

reasonable time, not to exceed ninety days,

the Administrator shall withdraw approval

of such program. The Administrator shall

not withdraw approval of any such program

unless he shall first have notified the State,

and made public, in writing, the reasons for

such withdrawal.

40a

(11) In the case of a State with a pro-

gram submitted and approved under

this paragraph, the Administrator shall

withdraw approval of such program un-

der this subparagraph only for a sub-

stantial failure of the State to adminis-

ter its program in accordance with the

requirements of this paragraph.

Clean Water Act §§ 301(a), (b), and (e); 33 U.S.C.

§§ 1311(a), (b), and (e)

§ 1311. Effluent limitations

(a) Illegality of pollutant discharges except in

compliance with law

Except as in compliance with this section and sec-

tions 1312, 138416, 13817, 1328, 1342, and 1344 of this

title, the discharge of any pollutant by any person shall

be unlawful.

(b) Timetable for achievement of objectives

In order to carry out the objective of this chap-

ter there shall be achieved--

(1)(A) not later than July 1, 1977, efflu-

ent limitations for point sources, other than

publicly owned treatment works, (i) which

shall require the application of the best

practicable control technology currently

available as defined by the Administrator

pursuant to section 1314(b) of this title, or

(ii) in the case of a discharge into a publicly

owned treatment works which meets the re-

4la

quirements of subparagraph (B) of this pa-

ragraph, which shall require compliance

with any applicable pretreatment require-

ments and any requirements under section

1317 of this title; and

(B) for publicly owned treatment

works in existence on July 1, 1977, or

approved pursuant to section 1283 of

this title prior to June 30, 1974 (for

which construction must be completed

within four years of approval), effluent

limitations based upon secondary

treatment as defined by the Adminis-

trator pursuant to section 1314(d)(1) of

this title; or,

more stringent limitation, including

those necessary to meet water quality

standards, treatment standards, or

schedules of compliance, established

pursuant to any State law or regula-

tions (under authority preserved by sec-

tion 1370 of this title) or any other Fed-

eral law or regulation, or required to

implement any applicable water quality

standard established pursuant to this

chapter.

(2) (A) for pollutants identified in subpara-

graphs (C), (D), and (F) of this paragraph, ef-

fluent limitations for categories and classes

of point sources, other than publicly owned

treatment works, which (i) shall require ap-

plication of the best available technology

42a

economically achievable for such category or

class, which will result in reasonable further

progress toward the national goal of eclimi-

nating the discharge of all pollutants, as de-

termined in accordance with regulations is-

sued by the Administrator pursuant to sec-

tion 1314(b)(2) of this title, which such efflu-

ent limitations shall require the elimination

of discharges of all pollutants if the Admin-

istrator finds, on the basis of information

available to him (including information de-

veloped pursuant to section 1325 of this ti-

tle), that such elimination is technologically

and economically achievable for a category

or Class of point sources as determined in ac-

cordance with regulations issued by the Ad-

ministrator pursuant to section 1314(b)(2) of

this title, or (ii) in the case of the introduc-

tion of a pollutant into a publicly owned

treatment works which meets the require-

ments of subparagraph (B) of this para-

graph, shall require compliance with any

applicable pretreatment requirements and

any other requirement under section 1317 of

this title;

(B) Repealed. Pub. L. 97-117, § 21(b),

Dec. 29, 1981, 95 Stat. 1632.

ants referred to in table 1 of Committee

Print Numbered 95-30 of the Commit-

tee on Public Works and Transportation

of the House of Representatives compli-

ance with effluent limitations in accor-

dance with subparagraph (A) of this

43a

paragraph as expeditiously as practica-

ble but in no case later than three years

after the date such limitations are

promulgated under section 1314(b) of

this title, and in no case later than

March 31, 1989;

(D) for all toxic pollutants listed un-

der paragraph (1) of subsection (a) of

section 1317 of this title which are not

referred to in subparagraph (C) of this

paragraph compliance with effluent li-

mitations in accordance with subpara-

graph (A) of this paragraph as expedi-

tiously as practicable, but in no case

later than three years after the date

such limitations are promulgated under

section 1314(b) of this title, and in no

case later than March 31, 1989;

(EK) as expeditiously as_ practicable

but in no case later than three years af-

ter the date such limitations are prom-

ulgated under section 1314(b) of this ti-

tle, and in no case later than March 31,

1989, compliance with effluent limita-

tions for categories and classes of point

sources, other than publicly owned

treatment works, which in the case of

pollutants identified pursuant to sec-

tion 1314(a)(4) of this title shall require

application of the best conventional! pol-

lutant contro] technology as determined

in accordance with regulations issued

by the Administrator pursuant to sec-

tion 1314(b)(4) of this title; and

44a

(F) for all pollutants (other than

those subject to subparagraphs (C), (D),

or (E) of this paragraph) compliance

with effluent limitations in accordance

with subparagraph (A) of this para-

graph as expeditiously as practicable

but in no case later than 3 years after

the date such limitations are estab-

lished, and in no case later than March

31, 1989.

(3) (A) for effluent limitations under pa-

ragraph (1)(A)(i) of this subsection promul-

gated after January 1, 1982, and requiring a

level of control substantially greater or based

on fundamentally different control technology

than under permits for an industrial category

issued before such date, compliance as expedi-

tiously as practicable but in no case later than

three years after the date such limitations are

promulgated under section 1314(b) of this ti-

tle, and in no case later than March 31, 1989;

and

(B) for any effluent limitation in ac-

cordance with paragraph (1)(A)(i),

(2)(A)(i), or (2)(E) of this subsection es-

tablished only on the basis of section

1342(a)(1) of this title in a permit is-

sued after February 4, 1987, compliance

as expeditiously as practicable but in no

case later than three years after the

date such limitations are established,

and in no case later than March 31,

1989.

A5a

* * _

(e) All point discharge source application of

effluent limitations

Effluent limitations established pursuant to

this section or section 1312 of this title shall be ap-

plied to all point sources of discharge of pollutants in

accordance with the provisions of this chapter.

Clean Water Act §§ 303(c), (d), and (e); 33 U.S.C.

§§ 1313(c), (d), and (e)

§ 13138. Water quality standards and implementa

tion plans

(1) The Governor of a State or the State

water pollution control agency of such State

shall from time to time (but at least once

each three year period beginning with Octo

ber 18, 1972) hold public hearings for the

purpose of reviewing applicable water qual

ity standards and, as appropriate, modifying

and adopting standards. Results of such re-

view shall be made available to the Adminis

trator.

(2) (A) Whenever the State revises or

adopts a new standard, such revised or new

standard shall be submitted to the Adminis-

trator. Such revised or new water quality

standard shall consist of the designated uses

—“_——

46a

of the navigable waters involved and the wa-

ter quality criteria for such waters based

upon such uses. Such standards shall be

such as to protect the public health or wel-

fare, enhance the quality of water and serve

the purposes of this chapter. Such standards

shall be established taking into considera-

tion their use and value for public water

supplies, propagation of fish and wildlife, re-

creational purposes, and agricultural, indus-

trial, and other purposes, and also taking in-

to consideration their use and value for na-

vigation.

(B) Whenever a State reviews water

quality standards pursuant to para-

graph (1) of this subsection, or revises

or adopts new standards pursuant to

this paragraph, such State shall adopt

criteria for all toxic pollutants listed

pursuant to section 1317(a)(1) of this ti-

tle for which criteria have been pub-

lished under section 1314(a) of this ti-

tle, the discharge or presence of which

in the affected waters could reasonably

be expected to interfere with those des-

ignated uses adopted by the State, as

necessary to support such designated

uses. Such criteria shall be specific nu-

merical criteria for such toxic pollut-

ants. Where such numerical criteria are

not available, whenever a State reviews

water quality standards pursuant to

paragraph (1), or revises or adopts new

standards pursuant to this paragraph,

such State shall adopt criteria based on

Alva

biological monitoring or assessment

methods consistent with information

published pursuant to section

1314(a)(8) of this title. Nothing in this

section shall be construed to limit or de-

lay the use of effluent limitations or

other permit conditions based on or in-

volving biological monitoring or as-

sessment methods’. or _ previously

adopted numerical criteria.

(3) If the Administrator, within sixty days

after the date of submission of the revised or

new standard, determines that such stan-

dard mcets the requirements of this chapter,

such standard shall thereafter be the water

quality standard for the applicable waters of

that State. If the Administrator determines

that any such revised or new standard is not

consistent with the applicable requirements

of this chapter, he shall not later than the

ninetieth day after the date of submission of

such standard notify the State and specify

the changes to meet such requirements. If

such changes are not adopted by the State

within ninety days after the date of notifica-

tion, the Administrator shall promulgate

such standard pursuant to paragraph (4) of

this subsection.

(4) The Administrator shall promptly pre-

pare and publish proposed regulations set-

ting forth a revised or new water quality

standard for the navigable waters involved--

48a

(A) if a revised or new water quality

standard submitted by such State un-

der paragraph (3) of this subsection for

such waters is determined by the Ad-

ministrator not to be consistent with

the applicable requirements of this

chapter, or

(B) in any case where the Administrator

determines that a revised or new stan-

dard is necessary to meet the require-

ments of this chapter.

The Administrator shall promulgate any re-

vised or new standard under this paragraph not lat-

er than ninety days after he publishes such proposed

standards, unless prior to such promulgation, such

State has adopted a revised or new water quality

standard which the Administrator determines to be

in accordance with this chapter.

(d) Identification of areas with insufficient

controls; maximum daily load; certain effluent limi-

tations revision

(1) (A) Each State shall identify those

waters within its boundaries for which the

effluent limitations required by section

1311(b)(1)(A) and section 1311(b)(1)(B) of

this title are not stringent enough to imple-

ment any water quality standard applicable

to such waters. The State shall establish a

priority ranking for such waters, taking into

account the severity of the pollution and the

uses to be made of such waters.

49a

(B) Each State shall identify those

waters or parts thereof within its boun-

daries for which controls on thermal

discharges under section 1311 of this ti-

tle are not stringent enough to assure

protection and propagation of a bal-

anced indigenous population of shell-

fish, fish, and wildlife.

waters identified in paragraph (1)(A) of

this subsection, and in accordance with

the priority ranking, the total maxi-

mum daily load, for those pollutants

which the Administrator identifies un-

der section 1314(a)(2) of this title as

suitable for such calculation. Such load

shall be established at a level necessary

to implement the applicable water qual-

ity standards with seasonal variations

and a margin of safety which takes into

account any lack of knowledge concern-

ing the relationship between effluent

limitations and water quality.

(D) Each State shall estimate for the

waters identified in paragraph (1)(B) of

this subsection the total maximum dai-

ly thermal load required to assure pro-

tection and propagation of a balanced,

indigenous population of shellfish, fish,

and wildlife. Such estimates shall take

into account the normal water tempera-

tures, flow rates, seasonal variations,

existing sources of heat input, and the

dissipative capacity of the identified

50a

waters or parts thereof. Such estimates

shall include a calculation of the maxi-

mum heat input that can be made into

each such part and shall include a mar-

gin of safety which takes into account

any lack of knowledge concerning the

development of thermal water quality

criteria for such protection and propa-

gation in the identified waters or parts

thereof.

(2) Each State shall submit to the Admin-

istrator from time to time, with the first

such submission not later than one hundred

and eighty days after the date of publication

of the first identification of pollutants under

section 1314(a)(2)(D) of this title, for his ap-

proval the waters identified and the loads

established under paragraphs (1)(A), (1)(B),

(1)(C), and (1)(D) of this subsection. The

Administrator shall either approve or disap-

prove such identification and load not later

than thirty days after the date of submis-

sion. If the Administrator approves such

identification and load, such State shall in-

corporate them into its current plan under

subsection (e) of this section. If the Adminis-

trator disapproves such identification and

load, he shall not later than thirty days after

the date of such disapproval identify such

waters in such State and establish such

loads for such waters as he determines nec-

essary to implement the water quality stan-

dards applicable to such waters and upon

such identification and establishment the

State shall incorporate them into its current

dla

plan under subsection (e) of this section.

(3) For the specific purpose of developing in-

formation, each State shall identify all wa-

ters within its boundaries which it has not

identified under paragraph (1)(A) and (1)(B)

of this subsection and estimate for such wa-

ters the total maximum daily load with sea-

sonal variations and margins of safety, for

those pollutants which the Administrator

identifies under section 1314(a)(2) of this ti-

tle as suitable for such calculation and for

thermal discharges, at a level that would as-

sure protection and propagation of a bal-

anced indigenous population of fish, shell-

fish, and wildlife.

(4) Limitations on revision of certain efflu-

ent limitations

(A) Standard not attained

For waters identified under paragraph (1)(A)

where the applicable water quality standard has

not yet been attained, any effluent limitation

based on a total maximum daily load or other

waste load allocation established under this sec-

tion may be revised only if (1) the cumulative ef-

fect of all such revised effluent limitations based

on such total maximum daily load or waste load

allocation will assure the attainment of such wa-

ter quality standard, or (ii) the designated use

which is not being attained is removed in accor-

dance with regulations established under this

section.

52a

(B) Standard attained

For waters identified under paragraph (1)(A)

where the quality of such waters equals or ex-

ceeds levels necessary to protect the designated

use for such waters or otherwise required by ap-

plicable water quality standards, any effluent h-

mitation based on a total maximum daily load or

other waste load allocation established under this

section, or any water quality standard estab-

lished under this section, or any other permitting

standard may be revised only if such revision is

subject to and consistent with the antidegrada-

tion policy established under this section.

* * *

(e) Continuing planning process

(1) Each State shall have a continuing

planning process approved under paragraph

(2) of this subsection which is consistent

with this chapter.

(2) Each State shall submit not later than

120 days after October 18, 1972, to the Ad-

ministrator for his approval a proposed con-

tinuing planning process which is consistent

with this chapter. Not later than thirty days

after the date of submission of such a proc-

ess the Administrator shall either approve

or disapprove such process. The Administra-

tor shall from time to time review each

State's approved planning process for the

purpose of insuring that such planning proc-

ess is at all times consistent with this chap-

ter. The Administrator shall not approve any

53a

State permit program under subchapter IV

of this chapter for any State which does not

have an approved continuing planning proc-

ess under this section.

(3) The Administrator shall approve any

continuing planning process submitted to

him under this section which will result in

plans for all navigable waters within such

State, which include, but are not limited to,

the following:

(A) effluent limitations and_ sched-

ules of compliance at least as stringent

as those required by section 1311(b)(1),

section 1311(b)(2), section 1316, and

section 1317 of this title, and at least as

stringent as any requirements con-

tained in any applicable water quality

standard in effect under authority of

this section;

(B) the incorporation of all elements of

any applicable area-wide waste man-

agement plans under section 1288 of

this title, and applicable basin plans

under section 1289 of this title;

lutants in accordance with subsection

(d) of this section;

(D) procedures for revision;

(E) adequate authority for intergov-

ernmental cooperation;

o4a

(F) adequate implementation, _in-

cluding schedules of compliance, for re-

vised or new water quality standards,

under subsection (c) of this section;

(G) controls over the disposition of all

residual waste from any waiter treat-

ment processing;

(H) an inventory and ranking, in or-

der of priority, of needs for construction

of waste treatment works required to

meet the applicable requirements of

sections 1311 and 1312 of this title.

Clean Water Act § 306(a)(1) and (2); 33 U.S.C.

§ 1316(a)(1) and (2)

§ 1316. National standards of performance

(a)

Definitions

For purposes of this section:

(1)

The term “standard of performance”

means a standard for the control of the dis-

charge of pollutants which reflects the

greatest degree of effluent reduction which

the Administrator determines to be achiev-

able through application of the best avail-

able demonstrated control technology, proc-

esses, operating methods, or other alterna-

tives, including, where practicable, a stan-

dard permitting no discharge of pollutants.

55a

(2) The term “new source” means any

source, the construction of which is com-

menced after the publication of proposed

regulations prescribing a standard of per-

formance under this section which will be

applicable to such source, if such standard is

thereafter promulgated in accordance with

this section.

Clean Water Act §309(b) and (d); 33 U.S.C.

§ 1319(b) and (d)

§ 1319. Enforcement

* * *

(b) Civil actions

The Administrator is authorized to commence

a civil action for appropriate relief, including a per-

manent or temporary injunction, for any violation for

which he is authorized to issue a compliance order

under subsection (a) of this section. Any action under

this subsection may be brought in the district court

of the United States for the district in which the de-

fendant is located or resides or is doing business, and

such court shall have jurisdiction to restrain such

violation and to require compliance. Notice of the

commencement of such action shall be given imme-

diately to the appropriate State.

* a

(d) Civil penalties; factors considered in de-

termining amount

56a

Any person who violates section 1311, 1312,

1316, 1317, 1318, 1828, or 13465 of this title, or any

permit condition or limitation implementing any of

such sections in a permit issued under section 1342

of this title by the Administrator, or by a State,

[F'N1] or in a permit issued under section 1344 of

this title by a State, or any requirement imposed in a

pretreatment program approved under section

1342(a)(3) or 1342(b)(8) of this title, and any person

who violates any order issued by the Administrator

under subsection (a) of this section, shall be subject

to a civil penalty not to exceed $25,000 per day for

each violation. In determining the amount of a civil

penalty the court shall consider the seriousness of

the violation or violations, the economic benefit (if

any) resulting from the violation, any history of such

violations, any good-faith efforts to comply with the

applicable requirements, the economic impact of the

penalty on the violator, and such other matters as

justice may require. For purposes of this subsection,

a single operational upset which leads to simultane-

ous violations of more than one pollutant parameter

shall be treated as a single violation.

Clean Water Act §§ 319(a)(1)(A), (B), and (C); 33

U.S.C. §§ 1329(a)(1)(A), (B), and (C)

§ 1329. Nonpoint source management programs

(a) State assessment reports

(1) Contents

The Governor of each State shall, after no-

tice and opportunity for public comment,

ova

prepare and submit to the Administrator for

approval, a report which—

(A) identifies those navigable waters

within the State which, without addi-

tional action to control nonpoint sources

of pollution, cannot reasonably be ex-

pected to attain or maintain applicable

water quality standards or the goals

and requirements of this chapter;

(B) identifies those categories and

subcategories of nonpoint sources or,

where appropriate, particular nonpoint

sources which add significant pollution

to each portion of the navigable waters

identified under subparagraph (A) in

amounts which contribute to such por-

tion not meeting such water quality

standards or such goals and require-

ments;

tergovernmental coordination and pub-

lic participation, for identifying best

management practices and measures to

control each category and subcategory

of nonpoint sources and, where appro-

priate, particular nonpoint’ sources

identified under subparagraph (B) and

to reduce, to the maximum extent prac-

ticable, the level of pollution resulting

from such category, subcategory, or

source; and

58a

Clean Water Act §§ 402(a) and (b); 33 U.S.C.

§§ 1342(a) and (b)

§ 1342. National pollutant discharge elimination sys-

tem

(a) Permits for discharge of pollutants

(1) Except as provided in sections 1328 and

1344 of this title, the Administrator may, af-

ter opportunity for public hearing, issue a

permit for the discharge of any pollutant, or

combination of pollutants, notwithstanding

section 1311(a) of this title, upon condition

that such discharge will meet either (A) all

applicable requirements under sections

1311, 1312, 1316, 1317, 1318, and 1343 of

this title, or (B) prior to the taking of neces-

sary implementing actions relating to all

such requirements, such conditions as the

Administrator determines are necessary to

carry out the provisions of this chapter.

(2) The Administrator shall prescribe con-

ditions for such permits to assure compli-

ance with the requirements of paragraph (1)

of this subsection, including conditions on

data and information collection, reporting,

and such other requirements as he deems

appropriate.

(3) The permit program of the Administrator

under paragraph (1) of this subsection, and

permits issued thereunder, shall be subject

to the same terms, conditions, and require-

ments as apply to a State permit program

59a

and permits issued thereunder under sub

section (b) of this section.

(b) State permit programs

At any time after the promulgation of the

guidelines required by subsection (i)(2) of section

1314 of this title, the Governor of each State desiring

to administer its own permit program for discharges

into navigable waters within its jurisdiction may

submit to the Administrator a full and complete de-

scription of the program it proposes to establish and

administer under State law or under an interstate

compact. In addition, such State shall submit a

statement from the attorney general (or the attorney

for those State water pollution control agencies

which have independent legal counsel), or from the

chief legal officer in the case of an interstate agency,

that the laws of such State, or the interstate com-

pact, as the case may be, provide adequate authority

to carry out the described program. The Admuinistra-

tor shall approve each such submitted program un-

less he determines that adequate authority does not

exist:

(1) To issue permits which--

(A) apply, and insure compliance with,

any applicable requirements of sections

1311, 1312, 1316, 1317, and 1343 of this

title;

(B) are for fixed terms not exceeding

five years; and

60a

cause including, but not limited to, the

following:

(1) violation of any condition of

the permit;

(11) obtaining a permit by misrep-

resentation, or failure to disclose

fully all relevant facts;

(111) change in any condition that

requires either a temporary or

permanent reduction or elimina-

tion of the permitted discharge;

(D) control the disposal of pollutants in-

to wells;

(2) (A) To issue permits which apply, and

insure compliance with, all applicable re-

quirements of section 1318 of this title; or

(B) To inspect, monitor, enter, and re-

quire reports to at least the same extent

as required in section 1318 of this title;

(7) To abate violations of the permit or the

permit program, including civil and criminal

penalties and other ways and means of en-

forcement;

Gla

Clean Water Act § 501(a); 33 U.S.C. § 1361(a)

§ 1361. Administration

(a) Authority of Administrator to prescribe

regulations

The Administrator is authorized to prescribe

such regulations as are necessary to carry out his

functions under this chapter.

Clean Water Act § 502 §§ (6), (11), (12), and (14); 33

U.S.C. §§ 1362(6), (11), (12), and (14)

§ 1362 Definitions

Except as otherwise specifically provided, when

used in this chapter:

(6) The term “pollutant” means dredged spoil,

solid waste, incinerator residue, sewage, garbage, sew-

age sludge, munitions, chemical wastes, biological ma-

terials, radioactive materials, heat, wrecked or dis-

carded equipment, rock, sand, cellar dirt and industrial,

municipal, and agricultural waste discharged into wa-

ter. This term does not mean (A) “sewage from vessels

or a discharge incidental to the normal operation of a

vessel of the Armed Forces” within the meaning of sec-

tion 1322 of this title; or (B) water, gas, or other mate-

rial which is injected into a well to facilitate production

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

gas production and disposed of in a well, if the well

used either to facilitate production or for disposal pur-

poses is approved by authority of the State in which the

62a

well is located, and if such State determines that such

injection or disposal will not result in the degradation of

ground or surface water resources.

(11) The term “effluent limitation” means any

restriction established by a State or the Administra-

tor on quantities, rates, and concentrations of chemi-

cal, physical, biological, and other constituents

which are discharged from point sources into navi-

gable waters, the waters of the contiguous zone, or

the ocean, including schedules of compliance.

(12) The term “discharge of a pollutant” and the

term “discharge of pollutants” each means (A) any addi-

tion of any pollutant to navigable waters from any point

source. (B) any addition of any pollutant to the waters

of the contiguous zone or the ocean from any point

source other than a vessel or other floating craft.

(14) The term “point source” means any discerni-

ble, confined and discrete conveyance, including but not

limited to any pipe, ditch, channel, tunnel, conduit,

well, discrete fissure, container, rolling stock, concen-

trated animal feeding operation, or vessel or other float-

ing craft, from which pollutants are or may be dis-

charged. This term does not include agricultural

stormwater discharges and return flows from urrigated

agriculture.

63a

Clean Water Act sect. 505(a), (f), and (g); 33

U.S.C. sect. 1365(a), (f), and (g)

(a) Authorization; jurisdiction

Except as provided in subsection (b) of this

section and section 1319(g)(6) of this title, any citi-

zen may commence a civil action on his own behalf--

(1) against any person (including (i) the

United States, and (ii) any other governmen-

tal instrumentality or agency to the extent

permitted by the eleventh amendment to the

Constitution) who is alleged to be in viola-

tion of (A) an effluent standard or limitation

under this chapter or (B) an order issued by

the Administrator or a State with respect to

such a standard or limitation, or

(2) against the Administrator where there is

alleged a failure of the Administrator to per-

form any act or duty under this chapter

which is not discretionary with the Adminis-

trator.

The district courts shall have jurisdiction,

without regard to the amount in controversy or the

citizenship of the parties, to enforce such an effluent

standard or limitation, or such an order, or to order

the Administrator to perform such act or duty, as the

case may be, and to apply any appropriate civil pen-

alties under section 1319(d) of this title.

64a

(f) Effluent standard or limitation

For purposes of this section, the term “effluent

standard or limitation under this chapter” means (1)

effective July 1, 1973, an unlawful act under subsec-

tion (a) of section 1311 of this title; (2) an effluent

limitation or other limitation under section 1311 or

1312 of this title; (3) standard of performance under

section 1316 of this title; (4) prohibition, effluent

standard or pretreatment standards under section

1317 of this title; (5) certification under section 1341

of this title; (6) a permit or condition thereof issued

under section 1342 of this title, which is in effect un-

der this chapter (including a requirement applicable

by reason of section 1323 of this title); or (7) a regu-

lation under section 1345(d) of this title. [FN1]

(g) “Citizen” defined

For the purposes of this section the term “citi-

zen” means a person or persons having an interest

which is or may be adversely affected.

65a

FEDERAL INSECTICIDE, FUNGICIDE, AND

RODENTICIDE ACT PROVISIONS

Federal Insecticide, Fungicide, and Rodenticide

Act § 2{bb); 7 U.S.C. § 136(bb)

§ 136. Definitions

(bb) Unreasonable adverse effects on the

environment

The term “unreasonable adverse effects on the

environment” means (1) any unreasonable risk to

man or the environment, taking into account the

economic, social, and environmental costs and bene-

fits of the use of any pesticide, or (2) a human die-

tary risk from residues that result from a use of a

pesticide in or on any food inconsistent with the

standard under section 346a of Title 21. ‘The Admin-

istrator shall consider the risks and benefits of pub-

lic health pesticides separate from the ri

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