On January 7th the Federal Court of Appeals for the Sixth Circuit issued a decision in a long-running battle over whether the application of pesticides in, near or over water requires a Clean Water Act point source permit. In a case which consolidated multiple challenges to a Bush Administration regulation exempting pesticide applications from clean water permit requirements, the Court held (in the words of the winners) "that pesticide residuals and biological pesticides constitute pollutants under federal law and therefore must be regulated under the Clean Water Act in order to minimize the impact to human health and the environment.”
The decision, which elicited little press coverage, is being watched closely by agricultural interests. An appeal to the full Sixth Circuit or to the US Supreme Court may be coming. Background on this case and on the battle over pesticide applications can be found on the website of the Western Environmental Law Center. WELC lawyer Charlie Tebbitt was the lead lawyer for plaintiffs in the appeal case.
The Agriculture Industry has long sought to avoid regulation under the Clean Water Act’s NPDES permit process as well as other pesticide regulation. When agriculture is regulated, the industry prefers that the regulations are enforced by an agricultural agency rather than by an environmental agency. But in recent years agricultural operations in general and pesticide applications in particular have come under closer scrutiny – usually as the result of environmentalist lawsuits. The impact of pesticides on ESA-listed salmon is another area in which litigation has resulted in agricultural regulation. In the salmon case the Supreme Court let stand a Ninth Circuit decision upholding no spray buffers along salmon streams.
The Sixth Circuit decision may also have an impact on pesticide applications by timber companies. In California, Sierra Pacific Industries (SPI) – the state's largest landowner and largest timber company – was recently fingered by the group Forest Ethics because the company sprays herbicides, including some banned in Europe, in areas above domestic and municipal water supplies.
According to state data, SPI sprayed more than 335,000 pounds of herbicide on land it owns in Northern California between 1995 and 2006. Adjacent landowners have long expressed concern over SPI’s herbicide use but to date little beyond stream monitoring has been required of the company. However, if timber companies must obtain a clean water permit each time they spray toxic chemicals, they may choose to engage in less spraying.
The same argument can be applied to agriculture: If the decision that clean water permits are required for pesticide spraying stands, will agricultural interests choose to use pesticides less often?