Source: National Association of Wheat Growers

NAWG and 21 other agricultural organizations asked Thursday that the full Sixth Circuit Court of Appeals rehear a landmark pesticide case, even as the Environmental Protection Agency, a party to the case, declined to do so.

A January opinion on National Cotton Council of America v U.S. Environmental Protection Agency from a three-judge panel was the first U.S. court ruling that pesticide discharge is a point source of pollution subject to additional regulation and permitting under the Clean Water Act (CWA).

The agriculture groups submitted their request in a friend of the court brief, arguing the decision ignored the definition in CWA of "point source" and that point sources are regulated only where they convey pollutants to navigable waters, not where they convey things that may at some later point result in water pollution.

A group as diverse and powerful as Secretary of Agriculture Tom Vilsack, Senate Agriculture Committee Chairman Tom Harkin (D-Iowa), Ranking Member Saxby Chambliss (R-Ga.) and California Governor Arnold Schwarzenegger had urged EPA to request a rehearing of the case. Agriculture groups delivered a similar message in a meeting last week.

However, on Thursday, the federal government through EPA declined to ask for a rehearing, asking instead for a stay of the decision for two years to give the Agency time to develop a general pesticide application permit within the requirements of the ruling.

It is unclear when the Sixth Circuit Court will decide what to do next. The court's options include a full-Circuit rehearing of the case, declining to rehear the case or issuing a stay, like the EPA has requested. The only option to appeal whatever decision the court makes is to advance the case to the Supreme Court.

NAWG says the decision as it stands is "a clear threat to agricultural production; EPA estimates that the ruling would affect approximately 365,000 pesticide applicators that perform 5.6 million pesticide applications annually."

NAWG counsel has prepared a detailed article on the case and its potential implications.