Court Denies Ag Rehearing Request

The U.S. Sixth Circuit Court of Appeals issued an order denying the agriculture industry’s request for a rehearing by the full judges panel in a case affecting crop protection applications involving water bodies. At issue was a three-judge panel’s decision in January. Is the fight against application permits over?

After the three-judge panel decided to vacate EPA’s 2007 National Pollutant Discharge Elimination System (NPDES) Final Rule for pesticides, the American Farm Bureau Federation, CropLife America, and National Cotton Council, along with the other petitioners, filed a motion for a rehearing by all nine 6th Circuit judges with the court. At the same time, the Agricultural Retailers Association and 21 other non-parties to the case (National Cotton Council v. EPA) filed an amicus curiae brief with the court, asking the court to rehear the case because of the impact the decision will have on the industry.

CropLife America has expressed disappointment following the Sixth Circuit Court of Appeals denial of its petition to review the panel’s decision.

“We’re disappointed with the court’s decision not to re-examine the ruling that pesticide applications made to, over, or near bodies of water will require NPDES permits,” says Jay Vroom, CropLife America president and CEO. “We believe that the ruling deserves further consideration given that not only aquatic, but aerial and terrestrial applications could all be impacted as a result, putting U.S. farmers at an uncertain risk for liability and adversely affecting American agriculture.”

In petitioning for review, CropLife America requested that the entire Sixth Circuit Court reexamine the panel’s classification as pollutants residuals left from the application of beneficial pesticides and the determination that all biological pesticides, as “biological materials,” are pollutants as defined by the Clean Water Act (CWA).

“We will continue to work toward clarifying that the panel’s decision does not apply to pesticide applications beyond the scope of the original NPDES Final Rule while offering our cooperation in the creation of an EPA NPDES permitting system to ensure that any general permit meets the critical needs of agriculture,” continues Vroom.

Currently, following a previous filing by EPA, the Sixth Circuit mandate is stayed until April 2011.

ARA, along with other agricultural organizations, is working with EPA to develop general permits for pesticide applications covered by the ruling. For more information, contact ARA staff member Carmen Haworth at 202-457-0825 or carmen@aradc.org.

(Sources: CropLife America. Agricultural Retailers Association)

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