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Court Reverses Bush EPA Exemption of Pesticides Under Clean Water Act

(Beyond Pesticides, January 13, 2009) In another stinging defeat for the Bush Environmental Protection Agency (EPA), on January 7, 2009, the 6th Circuit Court of Appeals issued a clear rebuke of the administration’s 2006 rule which exempted certain commercial pesticide applications from the oversight provided by Congress under the Clean Water Act. [The National Cotton Council et al. v. EPA (Nos. 06-4630; 07-3180/3181/3182/3183/3184/3185/3186/3187/3191/3236). See also Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 532-33 (9th Cir. 2001).] The Court held that pesticide residuals and biological pesticides constitute pollutants under federal law and therefore must be regulated under the Clean Water Act (CWA) in order to minimize the impact to human health and the environment.

According to Beyond Pesticides, the EPA rule had allowed the weaker and more generalized standards under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) to trump the more stringent CWA standards. CWA uses a kind of health-based standard known as maximum contamination levels to protect waterways and requires permits when chemicals are directly deposited into rivers, lakes and streams, while FIFRA uses a highly subjective risk assessment with no attention to the safest alternative. Read Beyond Pesticides’ press release on EPA’s 2006 decision.

Several manufacturers and industry associations had joined the case to try to broaden the EPA’s 2006 exemption. The Court told them in no uncertain terms that their products are harmful to human health and the environment, and therefore EPA must regulate aquatic pesticide applications under the Clean Water Act.

“The decision today is a victory for clean water, and for fish and wildlife” declared Charlie Tebbutt, Western Environmental Law Center attorney and lead counsel for the environmental organizations and organic farms that challenged the rule. “Furthermore, this decision is another in a long line of rebukes to the Bush administration policies that overstepped their statutory authority and to the chemical manufacturers who peddle their poisons without concern to the effect on human health and the environment. We look forward to working with the new EPA to protect the environment rather than the chemical industry.”

With this decision, virtually all commercial pesticide application to, over and around waterways will now require National Pollutant Discharge Elimination System (NPDES) permits. The NPDES permits will allow for local citizen input, and provide for accountability and oversight. The permits will also require the regulatory agencies to evaluate effects on fish and wildlife from individual applications, to monitor exactly how much of a pesticide application goes into in our nation’s waters, and to evaluate the cumulative impact this residual effect has on aquatic organisms.

“Time and again during these past eight years EPA has walked into federal courts and tried to defend absolutely indefensible rules like the one vacated today,” said Waterkeeper Alliance Legal Director Scott Edwards. “And time and again they’ve been sent back to the drawing board to rewrite these unlawful rules. Hopefully, EPA’s days of pandering to industry and other polluters and wasting taxpayers dollars in illegal rulemaking are drawing to a welcome close.”

The organizations bringing the case include Baykeeper, National Center for Conservation Science and Policy, Oregon Wild, Saint John’s Organic Farm, Californians for Alternatives to Toxics, California Sportfishing Protection Alliance, Waterkeeper Alliance, Environment Maine, Toxics Action Center, Peconic Baykeeper and Soundkeeper.

The organizations are represented by the Western Environmental Law Center, the National Environmental Law Center, the Pace Environmental Litigation Clinic, the Columbia Environmental Law Clinic and Waterkeeper Alliance.

“This is a significant victory for our nation’s waters. More than 8 million pounds of pesticides are applied each year in the Bay Area alone,” said Sejal Choksi, Program Director for San Francisco Baykeeper. “These toxic chemicals enter our creeks harming numerous species of fish, frog and other aquatic life and will now be regulated under the Clean Water Act.”


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