Posted by: Steven M. Taber | June 11, 2009

Clean Water Act Decision Regarding Application of Pesticides Stayed by Sixth Circuit

The United States Court of Appeals for the Sixth Circuit (Tennessee, Kentucky, Ohio, and Michigan) stayed its decision in National Cotton Council v. EPA until April 9, 2011.  Previously,  the Sixth Circuit decided on January 7, 2009, that the EPA’s rule, issued November 27, 2007, which concluded that pesticides applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) are exempt from the Clean Water Act’s permitting requirements (See 71 Fed.Reg. 68,483 (Nov. 27, 2006)), contravene the “clear and unambiguous” language of the Clean Water Act.   See, in general, “Sixth Circuit Overturns EPA Rule Exempting Pesticides From NPDES Permitting,” posted January 8, 2009.

After the decision, the EPA filed a Motion for Stay of Mandate to

avoid significant disruption to EPA and the 46 states that, along with the U.S. Virgin Islands, administer the Clean Water Act’s National Pollutant Discharge Elimination System (“NPDES”) permit programs.   EPA also seeks this stay to avoid significant disruption among the hundreds of thousands of persons and businesses nationwide who apply pesticides to, over, or near waters of the United States without NPDES permits and now, as a result of this Court’s decision, will need to obtain permits in order to continue doing so consistent with the Clean Water Act.

In the Motion, the EPA stated its intent to issue, and anticipates that the States will also issue, general NPDES permits to address the application of pesticides “in or near water.”  The EPA estimated that the administrative process, i.e., the development, proposal and issuance of general permits, will take two years.  The court granted the Motion without comment or opinion.

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Responses

  1. […] (June 11, 2009) – Sixth Circuit granted EPA’s Motion for Stay of Mandate.  See, “Clean Water Act Decision Regarding Application of Pesticides Stayed by Sixth Circuit,” posted June 11, 2009. Possibly related posts: (automatically generated)Kentucky […]

  2. There will be a 4-day consultation meeting of the Federal Insecticide, Fungicide, and Rodenticide Act Scientific Advisory Panel (FIFRA SAP) to consider and review a set of scientific issues related to the assessment of hazard and exposure associated with nanosilver and other nanometal pesticide products.

    DATES: The consultation meeting will be held on November 3 – 6, 2009, from approximately 8:30 a.m. to 5:00 p.m. The consultation meeting will be held at the Environmental Protection Agency, Conference Center, Lobby Level, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA 22202.

    Comments: The Agency encourages that written comments be submitted by October 20, 2009 and requests for oral comments be submitted by October 27, 2009. Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2009-0683, by one of the following methods:
    • Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.
    • Mail: Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

    FOR FURTHER INFORMATION CONTACT: Joseph E. Bailey, DFO, Office of Science Coordination and Policy (7201M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (202) 564-2045; fax number: (202) 564-8382; e-mail address: bailey.joseph@epa.gov.
    EPA source: http://www.FederalRegister.com

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