Putting Poison into Water: EPA's Toxic Interpretation of Pollutant Under the Clean Water Act

Abstract

EPA's interpretation exempting certain pesticide applications to and over waters from the definition of in the Clean Water Act, in a December 2006 final rule, is harmful to water quality, and legally impermissible in light of the text, structure, and protective purposes of the Act. This paper provides an overview of the Clean Water Act and the Federal Insecticide, Fungicide, and Rodenticide Act, recent court decisions on the interaction of the two acts, and the rulemaking process that lead to EPA's final rule exempting certain pesticide applications from requiring NPDES permits. The text, structure, and purpose of the Clean Water Act do not allow the interpretation of the term pollutant set out by EPA in its final rule, and the second circumstance of pesticide applications excepted, those over, including near, waters, is not even justified by EPA's own flawed rationale. EPA's reliance on FIFRA in reaching its conclusion that certain pesticide applications are not covered by the Clean Water Act's prohibition on discharges of pollutants is misplaced; not only is FIFRA not adequate for protecting water quality, it is legally irrelevant in interpreting the term pollutant under the CWA. In addition, the pesticide applications at issue are still prohibited by the Refuse Act and regulated by CWA § 401; this further suggests that Congress did not intend for such applications to be exempted from the coverage of the CWA's prohibition on the discharge of pollutants. The paper will endorse the proposals of certain commenters that while the pesticide applications discussed in EPA's final rule should require NPDES permits, the interests of controlling aquatic pests and disease and effective protection of water quality can be balanced through the use of special general permits under the Clean Water Act.