The American Farm Bureau Federation has filed a petition with the U.S. Supreme Court, asking the high court to review a lower court ruling that will otherwise impose Clean Water Act permitting requirements on the application of pesticides on, over or near water.
“Allowing the lower court ruling to stand would pose serious challenges to farmers battling pests,” said AFBF President Bob Stallman. “When pests strike, time is of the essence, and any length of time waiting for permit approval for products that are already approved would be disastrous.”
The problem stems from a January 2009 ruling by the U.S. Sixth Circuit Court of Appeals, which struck down a 2006 Environmental Protection Agency (EPA) rule that interpreted the Clean Water Act did not regulate most pesticide applications into, over or near “waters of the United States,” so long as the pesticide use complied with EPA’s requirements (such as EPA-approved label restrictions).
The Sixth Circuit found in “National Cotton Council v. EPA” that EPA must require Clean Water Act permits for pesticide application in water or near waters where pesticide falls into the water. The court recognized only a very narrow exception for chemical pesticides intentionally applied to water that leave no “residue” after their use is complete. AFBF’s petition seeks Supreme Court review of that decision.
The practical effect of the Sixth Circuit decision is that almost all pesticide applications directly to water, over water, or “near” water will require a Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit. If the decision is allowed to stand, farmers and others who use pesticides, such as mosquito abatement districts, will be required to obtain permits in order to apply pesticides on or near water. Since EPA views “waters of the United States” very broadly—including wetlands and even some ditches—the decision could affect hundreds of thousands of farmers.
In its petition to the U.S. Supreme Court, AFBF argues that the EPA pesticide rule simply formalized how EPA and Congress have always addressed environmental regulation of pesticide use.
“Since Congress enacted the Clean Water Act in 1972, EPA has never subjected the use of pesticides to NPDES permitting,” explained Julie Anna Potts, the AFBF’s general counsel. “This court opinion dramatically changes the scope of the Clean Water Act and will force farmers, public health agencies, and many others into burdensome, time-consuming, and costly permitting requirements that could seriously impair their ability to use pesticides to protect croplands and public health.
“AFBF submitted its petition to the U.S. Supreme Court to seek correction of a decision that threatens very real consequences for crop protection and public health,” Potts said. “Right now, the Supreme Court is all that is standing between us and broad new restrictions that will obstruct essential, often time-critical responses to pest and disease outbreaks.”
In its petition, AFBF warns that “even slight delays caused by permit requirements can result in less effective crop protection, the spread of pests and disease, and significant crop loss.” The petition also explains that effective mosquito control through pesticide use is our nation’s best weapon against mosquito-borne disease, cautioning “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.” The petition stresses that “few decisions in the history of the CWA have had such a far-reaching and disruptive impact.”
Responses to the AFBF petition, and friend-of-the-court briefs in support of the petition, will be due in early December. The Supreme Court is expected to decide whether to hear the case by the end of the year.