CWA and FIFRA: Understanding their
Role in Pesticide Applications
On January 7th, 2009, the 6th Circuit Court of Appeals handed down its decision in National Cotton
Council vs. EPA, vacating EPA’s Final Rule -Application of Pesticides to Waters of the United States in
Compliance with FIFRA (40 CFR 122) (Final Rule) published in the Federal Register November 27,
2006. The Court found that, under the plain language of the statute, (1) all biological pesticides are
"biological material" and therefore "pollutant"; and (2) excess or residual chemical is discharged "from
a point source" (the application equipment) even though it becomes "excess" or "residue" at some time
after being released from the application equipment. Based on this reasoning, the Court held that if some
pesticide enters waters of the U.S. as a result of a pesticide application, the application is a discharge of
a "pollutant."
The U.S. Rice Industry Urges Your Support For:
 Any clarification that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and not
the Clean Water Act (CWA), regulates the application of pesticides.
 EPA’s interpretation in their Final Rule that the CWA does not require National Pollutant
Discharge Elimination System (NPDES) permitting for pesticide applications in certain
circumstances. The rule stated a permit was not required for application of pesticides directly
into, over, or near waters of U.S. (e.g., application to forest canopy), provided the application is
in compliance with relevant FIFRA requirements.
 EPA’s finding in their Final Rule that a pesticide application is not a discharge of "pollutant"
as defined under the CWA because the pesticide is a useful product, not a "waste" when it is
released from the application equipment. The CWA definition of "pollutant" includes
"chemical waste" and "biological material," but does not include any other terms that might
apply to pesticides.
 That “residual” pesticides are not a pollutant but are often beneficial and necessary for proper
efficacy.
 The proper, label-regulated, and legal application under FIFRA of pesticides for the growing
of rice and other crops.
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Concerns/Effects of the Court’s Decision
Absent rehearing or reversal of this decision on appeal:
 All terrestrial applications of pesticide will require NPDES permits if any pesticide will enter
waters as a result of the application;
 All aquatic applications of chemical pesticides will require NPDES permits if any excess or
residue will remain after the pesticide has performed its intended purpose; and
 All aquatic applications of biological pesticide will require NPDES permits.
 This decision is binding law in the Sixth Circuit (Michigan, Ohio, Kentucky, and Tennessee) and
will be powerful precedent in other jurisdictions.
 Because this Court decision invalidated a nationally applicable regulation, EPA cannot issue
another regulation that contravenes the Court’s ruling.
 Under CWA’s citizen action provisions, this creates the tremendous potential liability for farmers
and applicators.
 Requiring NPDES permits for each application on a farm will be costly and time-consuming.
 The acquisition of NPDES permits may hinder or halt emergency pesticide applications as are
currently allowed by law for sudden pest infestations.
 NPDES permits for pesticide applications do not exist to our knowledge except for one non-rice
state, and that is for non-agricultural, aquatic applications.
 Other applications that may be negatively affected include herbicides used for vegetation
management along federal, state, county, and municipal roads; rights-of-ways for railroads;
electric transmission corridors; and spraying for mosquito control by municipal or county
personnel.
 In addition, the Court’s broad interpretation of "pollutant" to include any chemical product that
ultimately becomes "waste" in the environment would apply to a broad range of activities and
substances, from deicing treatments along roadways to fertilizer on lawns.
For more information, please feel free to contact the USA Rice Federation Staff:
Steve Hensley, (703) 236- 1445, shensley@usarice.com
Reece Langley, (703) 236-1471, rlangley@usarice.com
Johnny Broussard, (703) 236-1451, jbroussard@usarice.com
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