Source: Agricultural Retailers Association

According to the Agricultural Retailers Association, the Sixth Circuit U.S. Court of Appeals vacated an Environmental Protection Agency (EPA) rule which exempted certain applications of pesticides from the Clean Water Act requirement to obtain a National Pollutant Discharge Elimination System permit (NPDES) for application on or near water (National Cotton Council of America v. EPA, 6th Cir., No. 06-4630, 01/07/09).

In 2006, the EPA revised the Clean Water Act requirements to add an exemption- pesticides used in accordance with FIFRA were not required to obtain a NPDES permit.

In this case, the court rejected EPA's pesticide exemption to the NPDES permit. The court said, "We find the plain language of 'chemical waste' and 'biological materials' in the act to be unambiguous as to pesticides." The court also rejected EPA's argument that pesticide is discharged from a point source, but the residue does not exist until after the discharge is complete, so it should be treated as a nonpoint source pollutant.

The decision means that commercial pesticide applications to, over, and around waterways will now require NPDES permits, which mainly affects areas which grow rice or require mosquito control. ARA is concerned that this ruling may set an unfavorable precedent for the agricultural community under the Clean Water Act.