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.