Pesticide Case Facing Review

The American Farm Bureau Federation has filed a petition with the U.S. Supreme Court, asking the high court to review a lower court ruling that will otherwise impose Clean Water Act permitting requirements on the application of pesticides on, over or near water, according to Drovers news source.

The Sixth Circuit found in “National Cotton Council v. EPA” that EPA must require Clean Water Act permits for pesticide application in water or near waters where pesticide falls into the water. The court recognized only a very narrow exception for chemical pesticides intentionally applied to water that leave no “residue” after their use is complete. AFBF’s petition seeks Supreme Court review of that decision.

The practical effect of the Sixth Circuit decision is that almost all pesticide applications directly to water, over water, or “near” water will require a Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit. If the decision is allowed to stand, farmers and others who use pesticides, such as mosquito abatement districts, will be required to obtain permits in order to apply pesticides on or near water. Since EPA views “waters of the United States” very broadly — including wetlands and even some ditches—the decision could affect hundreds of thousands of farmers.

Responses to the AFBF petition, and friend-of-the-court briefs in support of the petition, will be due in early December. The Supreme Court is expected to decide whether to hear the case by the end of the year.

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