10-2015 NEWS & ANALYSIS 45 ELR 10939
the Sixth Circuit struck down EPA’s exemption in
tection Agency.8 e Obama Administration chose not to
appeal, and the U.S. Supreme Court denied the indus-
try’s petition for certiorari, eectively making a signicant
number of point source pesticide discharges nationwide
newly subject to NPDES permit requirements.9 According
to EPA calculations, the r uling
will increase by 65% the annual number of total discharges
subject to CWA jurisdiction.10
In response to the Sixth Circuit’s decision, in 2011, EPA
issued the Pesticide General Permit (PGP)11 to regulate
without individual permit requirements most direct-to-
water pesticide discharges.12 As discussed below, it is quite
uncertain whether discharges subject to this general per-
mit will actually protect water quality or wildlife. Further,
industry groups have backed several bills in the U.S. Con-
gress to negate and remove t he
need for a PGP.13 Uncertainty also surrounds other point
source discharges of pesticides, such a s some aerial sprays,
which are currently considered a point source and therefore
subject to CWA permit requirements, but only in the U.S.
Court of Appeals for the Ninth Circuit.14
9. See Charles Franklin,
, 26 N. R E’ 18, 19 (Summer 2011);
Elisabeth A. Holmes & Charles M. Tebbutt,
Story Behind National Cotton Council of America v. U.S. EPA, 41 ELR
10946 (Oct. 2011).
10. Brandon W. Neuschafer, -
der the Clean Water Act, 26 N. R E’ 23, 23 (2011).
11. Final National Pollutant Discharge Elimination System (NPDES) Pesticide
General Permit for Point Source Discharges From the Application of Pesti-
cides, 76 Fed. Reg. 68750 (Nov. 7, 2011).
12. U.S. EPA, Pesticide General Permit (PGP) for Discharges From the Applica-
tion of Pesticides 2011 [hereinafter PGP], available at http://www.epa.gov/
npdes/pubs/nal_pgp.pdf. e permit provides coverage for four “pesticide
use patterns”: mosquito and other ying insect pest control; weed and algae
pest control; animal pest control; and forest canopy pest control. Id. §1.1.1.
When operators satisfy its terms, the PGP authorizes eligible point source
discharges under the CWA. Id. at 1 (“In compliance with the [CWA], any
Operator of a point source discharge of pollutants (i.e., discharge) resulting
from the application of pesticides and eligible for permit coverage under
Part 1.1 ... is authorized to discharge to Waters of the United States in ac-
cordance with the requirements of this permit.”).
13. See, e.g., To Amend the Federal Insecticide, Fungicide, and Rodenticide
Act to Improve the Use of Certain Registered Pesticides, H.R. 6087, 111th
Cong. §2 (2010); A Bill to Amend the Federal Insecticide, Fungicide, and
Rodenticide Act to Improve the Use of Cer tain Registered Pesticides, S.
3735, 111th Cong. §2 (2010).
14. See, e.g., League of Wilderness Defenders/Blue Mountains Biodiversity Proj-
ect v. Forsgr
en, 309 F.3d 1181
, 1190 (9th Cir.
2002) (holding that the U.S.
Forest Service’s aerial pesticide spraying over forests and streams was a point
source discharge requiring an NPDES permit, because the discharge “clearly
meets the statutory denition of a point source” and allowing EPA to dene
it as nonpoint source would “contravene the intent of Congress”).
notes 116–18 and accompanying text for a brief discussion of aerial pesti-
cide spraying. Aerial sprays that meet one of the four pesticide use patterns
would be covered under the PGP. See PGP, supra note 12, §1.1.1.
A 2012 repor t by the Con gressional Resea rch Service
estim ates that nonpoint sourc e pollution “represents
more than 50% of the nation’s rem aini ng water pollu-
tion problems.”15 Operators16 typic ally apply p esticides
over large areas, meaning t hat mos t pesticide d ischarges
are nonpoint sou rce discharges because they do not orig-
inate from a “conned and discre te conveyance.”17 e
result is the same even when excess amounts of p esti-
cides reach jur isdictional waters via runo ; this regula-
tory gap occur s becau se the CWA denes “point source”
to exclude “a gricu ltura l stormwater discharges and
return ows from irrig ated agriculture.”18 Ultim ately,
these jurisdiction al limits in the CWA prevent the stat-
ute from achieving it s stated g oals19 of “restor[ing ] and
mainta in[ing] the chemical, physic al, and biological
integrit y of the Nation’s waters.”20
In 1987, Congress recognized the problem of nonpoint
source pollution when it amended the CWA, eectively
codifying states’ existing police power authority to control
sources of runo, including agricultural pollution.21 How-
ever, state-developed controls authorized by CWA §319
are voluntary and yield mixed results,22 and states face
enormous politica l pressure from the a gricultural indus-
try, which vigorously resists attempts to regu late nonpoint
Courts are less burdened by political pressure and lob-
bying than are legislatures and agencies, at both the federal
and state levels. e public trust doctrine empowers mem-
bers of the public24 to seek protection for public resources
15. See C C, C. R S., RL30030, C W
A: A S L 4 (2012), available at http://aquadoc.type-
16. Part II.B., for the denition of an “operator.”
19. See Jan G. Laitos & Heidi Ruckriegle, e Clean Water Act and the Challenge
, 37 V. L. R. 1033, 1035–38 (2013):
Since agriculture is exempt from most CWA controls ... pollution-
causing agricultural activities are classied as unregulated nonpoint
sources. A regulatory gap is thereby created: e CWA species
technology-based solutions to industrial discharges and sewage
euent from discrete point source conveyances, but it provides
no direct mechanisms to control the agriculture-based nonpoint
source pollution entering “waters of the United States.”
22. See Robert W. Adler,
Futures, 25 E E. L. P’ J. 77, 80 (2002); Véronique Jar-
, 23 V.
E. L.J. 1, 19 (2012) (noting the “lack of consequences for failure to
comply with §319”).
23. Jarrell-King, supra note 22.
24. Standing can limit an individual’s ability as a beneciary of the trust to
sue under the public trust doctrine. Compare
Marks v. Whitney, 6 Cal. 3d
, 261–62, 2 ELR 20049 (Cal. 1971) (determining that the plainti had
standing “as a member of the general public”), with Robinson v. Kunach,
standing to plaintis with statutory permission to assert the trust).
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.