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USAgNet - 08/05/2009
The Sixth Circuit Court of Appeals rejected a request by a coalition of agriculture
organizations for the entire Sixth Circuit to rehear an earlier decision by the Court
regarding pesticide applications near water. A three-judge panel of the Sixth Circuit ruled in
January that pesticide applications in, over, and near water require National Pollutant
Discharge Elimination System (NPDES) permits under the Clean Water Act.
The National Association of State Directors of Agriculture strongly opposed the Court's
decision and petitioned the Court for a hearing. In a letter filed with the Court in May,
NASDA argued that the decision significantly undermines NASDA members' authority under the
Federal Insecticide, Fungicide, and Rodenticide Act. The decision will also result in a
significant increase in the number of NPDES permits issued, creating strain on the permitting
system. NASDA also expressed concerns with the financial impacts the decision will have an
agriculture producers and their exposure to citizen action suits under the Clean Water Act.
The agriculture petitioners will have 90 days to decide whether to appeal the decision to the
U.S. Supreme Court.
Separately, EPA sought and received a two-year stay of the decision in order to allow for time
to develop a permit. EPA is currently developing a narrow general permit to comply with the
decision. Reports indicate a prototype could be circulated to stakeholders by the end of this
month for input and discussion.
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